COP15 v Minister for Immigration and Border Protection

Tribunal's decision 7 On 9 November 2015, the Tribunal affirmed the delegate's decision. 8 The Tribunal did not accept significant aspects of the appellant's claims, including that: the appellant's brother was assaulted, incarcerated or threatened by police or naval personnel (at [20]); the appellant's friend had attempted to lure him to a place with a view to him being beaten by government supporters (at [21]); navy or unidentified people visited the appellant's family home and threatened him, his brother and father at any time (at [22]); or the appellant's father had been threatened or assaulted at any time; that the navy, people in a white van or anyone else have ever visited the appellant's house and threatened him, his brother and father (at [23]). 9 The Tribunal found, on the basis of the evidence before it, that the appellant, his father and brother were "low level supporters" of the UNP (at [20]). While the Tribunal was willing to accept that the appellant may have been harassed and asked to abstain from putting up UNP posters by opposition political party supporters, it did not accept that any such harassment amounted to serious or significant harm (at [25]). The Tribunal found that the appellant, his father, brother and family had not been seriously or significantly harmed in the past for reason of their political involvement with the UNP (at [29]). 10 While the Tribunal accepted that there is politically motivated violence in Sri Lanka, particularly during electoral cycles (at [30]), after considering various sources of country information, it concluded that such violence "is isolated and limited" (at [35]). The Tribunal found that the prospect of the appellant being harmed in relation to electoral based violence if returned was so low as to be considered remote or insubstantial (at [35]). 11 The Tribunal also emphasised that since the appellant left Sri Lanka, the UNP gained power and controlled the government, with the consequence that he would be returning to a location that strongly supports the UNP and that he would be able to express his political opinion and continue to support the UNP into the future (including continuing similar low level activities for the party if he wished to do so) (at [38]). Accordingly, the Tribunal found that the appellant did not face a real chance of serious harm arising from his political opinion, even if he continued to support the UNP (at [38]-[39]). 12 The Tribunal also considered whether the appellant would face relevant harm on the basis that he illegally departed Sri Lanka and would be identified as a failed asylum seeker on return, notwithstanding that the appellant did not make an explicit claim about this. 13 Having regard to relevant country information and the appellant's profile and claims, the Tribunal stated at [54]-[59]: [54] I accept on the basis of the country information provided that the [appellant] will be questioned by Sri Lankan authorities (including airport immigration officials or [Criminal Investigation Department]) at the airport on his return, to establish his identity and entry rights and due to the context of his illegal departure and return. However, having regard to his accepted circumstances, I do not accept the [appellant] faces any real chance of being detained for questioning or otherwise targeted for harm - at the airport or in his home area - due to his identification as a failed asylum seeker, or any adverse real or imputed political opinion, including his, his father's and brother's political activity, or because of his illegal departure from Sri Lanka, individually or cumulatively. [55] Further, I do not accept that there will be any imputed anti-Government political opinion arising out of his departing Sri Lanka. I note that the [appellant] is now pro-government in his political opinion, given the changes in Sri Lanka since he departed in July 2012. I do not consider that the authorities would seek to harm him because he left as a UNP supporter in the past, given the change of government. [56] Having regard to the [appellant's] circumstances, I do not accept the [appellant] will be of adverse interest to the authorities on return to his home area. While he may be required to report to the authorities on return to his home area, I do not accept that this will lead to any harm to the [appellant], given that there is no reason for the authorities to be concerned about the [appellant], a Sinhalese man of no adverse interest. [57] Were the [appellant] to be questioned or monitored briefly at the airport or in his home region by the authorities due to his illegal departure, I do not accept this itself amounts to harm or serious harm to him. I do not accept that the [appellant] would be of ongoing or recurrent interest, or that he would face a real chance of serious harm or a real risk of significant harm in this context. I do not find the weight of evidence before me supports that view. 14 Accordingly, the Tribunal found that the appellant did not face a real chance of serious harm or a real risk of significant harm as a failed asylum seeker (at [58]-[59]). 15 Based on country information, the Tribunal accepted that the appellant may face short-term detention as result of being charged under the Immigrants and Emigrants Act, but it found that: his prospects of being subjected to torture were remote; he had the financial capacity to pay a fine; and, while the conditions in prison were poor, the appellant would not be singled out or intentionally harmed while waiting for bail (at [66]-[74]). In these circumstances, the Tribunal found that the appellant did not have a real chance of serious harm or a real risk of significant harm due to his illegal departure (at [75]). 16 The Tribunal ultimately was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention and, therefore, it concluded that the appellant did not satisfy the criterion in s 36(2)(a) of the Migration Act. The Tribunal also concluded that the appellant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act.

Federal Circuit Court proceeding 17 By an application filed on 2 December 2015, the appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court on the following unparticularised grounds: 1. The Administrative Appeals Tribunal did not afford me procedural fairness. 2. The Administrative Appeals Tribunal applied the wrong legal test. 18 The application was heard on 8 June 2018. The appellant appeared in person at the hearing and presented his case through an interpreter. On 15 June 2018, the primary judge dismissed the appellant's application. 19 In relation to the appellant's first ground, the primary judge noted at [15] that the appellant "did not descend into any proposition fact or law by which it was possible to tell what the alleged procedural unfairness was". The primary judge accepted submissions put by the Minister that: the Tribunal had complied with its procedural fairness obligations under Pt 7 of the Migration Act; the appellant was invited to attend the Tribunal hearing and did attend in the company of an interpreter; and the appellant was on notice that his credibility was an important issue for the Tribunal. The primary judge held that there was no breach of ss 425 or 425A of the Migration Act. His Honour also held that no obligations arose under s 424A of the Migration Act. 20 In relation to the appellant's second ground, the primary judge observed that the Tribunal correctly set out the relevant criteria, applied the facts to the law, and reached conclusions of fact that were open to it on the material before it. 21 In addition to his grounds of review, in written submissions under the heading, "Errors made by Tribunal", the appellant raised 14 further errors in relation to the Tribunal's reasons (which are repeated in grounds 2-16 of the appellant's grounds of appeal in the current proceeding). The primary judge addressed these further alleged errors at [21]-[34] of his reasons, and rejected each of the appellant's submissions. His Honour's reasons for doing so are outlined below in considering the appellant's grounds of appeal to this Court.

Proceeding in this Court 22 By a notice of appeal filed on 3 July 2018, the appellant raised the following 18 grounds of appeal: 1. The Federal Circuit Court erred in finding that the Appellant was not credible. 2. The Federal Circuit Court erred in not finding that the Tribunal erred in paragraph 8 of its decision in relying too much and giving excessive weight to the Ministerial Direction no. 56. 3. The Federal Circuit Court erred in not finding that the Tribunal erred in paragraph 20 of its decision by coming to conclusions of credibility not supported by the evidence. The Tribunal made an error of assessing the evidence in not believing the Appellant's brother was assaulted by the Sri Lankan Navy. 4. The Federal Circuit Court erred in not finding that the Tribunal erred in paragraph 21 of the decision in not believing that the Appellant's friend tried to lure him into being assaulted for his political belief. 5. The Federal Circuit Court erred in not finding that the Tribunal erred in paragraph 22 of the decision in not believing the Appellant's father was assaulted merely due to minor errors in the dates in the police reports. 6. The Federal Circuit Court erred in not finding that there was ample evidence here of an "official quality" of the persecution as these were Navy members in support of the ruling party - see Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 222 CLR 1. 7. The Federal Circuit Court erred in not finding that the Tribunal erred in Paragraph 20-22 of the Decision in focusing too heavily on the dates of events. The exact time and date cannot be material as they were near enough to corroborate the Appellant's version of events. The Appellant has been through a traumatic voyage and arrival to Australia and his exact recollection of dates would not be perfect and cannot be held in such strict accordance. 8. The Federal Circuit Court erred in not finding that the Tribunal erred in Paragraph 26 in substituting its own view of whether political oppression and fear due to political view occurred. The Appellant genuinely and subjectively believes he was persecuted due to political reasons, specifically the support of UNP in a majority SLFP area. 9. The Federal Circuit Court erred in not finding that the Tribunal erred in Paragraph 26-29 of the Decision in reasoning that only because the Appellant was a low level supporter of his party that he essentially not valuable or important enough to suffer political oppression. This is an incorrect reasoning. Any person of any level of political support may suffer persecution. 10. The Federal Circuit Court erred in not finding that the Tribunal in Paragraph 31 put too much emphasis on generic country reports and CMEV website. 11. The Federal Circuit Court erred in not finding that the Tribunal erred in paragraph 36-39 of its Decision that as the Appellant's party is now in power, he could return back and those who attacked him would not be a threat. S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. 12. The Federal Circuit Court erred in not finding that the Tribunal at paragraph 42 failed to weigh up and give weight that the Appellant would be persecuted as a failed asylum seeker if returned back to Sri Lanka and he would be persecuted by the authorities. 13. The Federal Circuit Court erred in not finding that the Tribunal erred at paragraph 63 of the decision in that the Appellant could face arbitrary detention for illegally leaving Sri Lanka upon his return. 14. The Federal Circuit Court erred in not finding that that it was not for the Tribunal to substitute its own personal opinion of whether the Appellant would be charged and detained. This is a possible risk and the Applicant being a political dissident, there is a likely chance of arbitrary detention. 15. The Federal Circuit Court erred in not finding that the Appellant is a legitimate and lawful asylum seeker and should be permitted to remain in Australia pursuant to Australia's protection obligations. 16. The Appellant should be granted a protection visa. 17. The Honourable Court erred in law and/or in fact by taking into account irrelevant facts, material and evidence and failed to take into account relevant facts material and evidence. 18. The Honourable Court erred in law and/or in fact by awarding costs against the Appellant. 23 As indicated above, grounds 2-16 were raised in the appellant's written submissions before the primary judge, who treated them as grounds of review. Grounds 2, 17 and 18 are new grounds not raised below. Ground 16 is no more than an affirmation that the appellant disagrees with the Tribunal's decision. 24 On 11 December 2018, the appellant filed written submissions in support of his appeal. These submissions reiterated his claims in summary form, and referred to the procedural history of the matter. They also drew attention to Minister for Immigration and Multicultural Affairs v S152/2003 [2004] HCA 18; 222 CLR 1 and S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 (also referred to in grounds 6 and 11 of his notice of appeal), without indicating how they were seen as relevant to this appeal. The appellant's submissions further state that the Tribunal did not consider the relevant facts in his case and made a jurisdictional error, without further elaboration. 25 The appellant appeared at the hearing today to present his case. He was assisted by an interpreter. The Court took the appellant through his grounds of appeal and he indicated that he had nothing further to say with respect to any of them or with respect to his appeal generally. 26 The Minister, represented by counsel, relied on written submissions filed on 11 February 2019.

Ground 1 27 Ground 1 alleges that the primary judge erred "in finding that the appellant was not credible". In fact, the primary judge rejected the appellant's challenges to the Tribunal's credibility findings (at [22], [26]). His Honour did not make any separate or independent credibility findings, and nor should he have done. 28 There is also no tenable basis shown to impugn the Tribunal's findings on the appellant's credit. Ground 1 is therefore without foundation.

Ground 2 Ground 2 alleges that the primary judge erred in not finding that the Tribunal relied too much on and gave excessive weight to Ministerial Direction No 56 - Consideration of Protection Visa Applications (Direction No 56). 29 The primary judge correctly held that the Tribunal took into account country information prepared by the Department of Foreign Affairs and Trade (DFAT) as it was required to do under Direction No 56, and that the Tribunal's reasons do not disclose that it gave excessive weight to the direction (at [21]). I observe that the Tribunal also had regard to country information from other sources, as was open to it to do, including the UNHCR, the Centre for Monitoring Electoral Violence, the UK Home Office, Freedom from Torture, Amnesty International, Human Rights Watch, and the Immigration and Refugee Board of Canada (see at [30], [44], [47], [52]). 30 Ground 2 is without foundation.

Grounds 3, 5 and 7 31 Grounds 3, 5 and 7 concern the Tribunal's credibility findings. 32 Ground 3 alleges, in part, that the primary judge erred in not finding that the Tribunal's conclusions on credibility were not supported by evidence. Ground 5 alleges that the primary judge erred in not finding that the Tribunal erred in not believing the appellant's father was assaulted "merely due to minor errors in the dates in the police report". Ground 7 alleges that the primary judge erred in not finding that the Tribunal erred in focussing too heavily on dates of events (this overlaps somewhat with ground 5). 33 The primary judge emphasised that credibility assessments are ordinarily a matter for the Tribunal, and found that there was no illogicality or other relevant error evident in the Tribunal's conclusions in relation to the appellant's credibility (at [22]). The primary judge also considered that, particularly when aggregated with the Tribunal's other credibility concerns, there was no relevant error in the Tribunal expressing its concern about the inadequacy of the appellant's recollection of dates and events (at [26]). 34 Relevantly, in its reasons, the Tribunal identified the nature of its concerns about the appellant's credibility with some care and in some detail. The Tribunal found that a number of matters reflected adversely on the appellant's credibility, including: significant inconsistencies between the appellant's evidence at the hearing and his earlier statutory declaration in relation to the year the appellant said his brother was assaulted and taken to the navy camp, and also how his brother was released from the camp (at [20]); the vagueness of the appellant's evidence about the alleged attempt by his friend to lure him to a location to be beaten by government people, and his inability to provide consistent evidence about when this event occurred, despite it being a significant claim (at [21]); and inconsistencies between the document that the appellant claimed was a police report made by his father and the appellant's statutory declaration regarding the dates when the people apparently came to the appellant's family home looking for him and his brother and threatening them and their father (at [22]). 35 There is no appellable error in the primary judge's conclusion that the Tribunal's credibility findings were open to it on the material before it: there is in this case no discernible jurisdictional error in the Tribunal's focus on the inconsistent evidence given by the appellant regarding the dates on which he said certain significant events occurred.

Grounds 3, 4, 5, 6, 9, 11 and 13 36 Grounds 3, 4, 5, 6, 9, 11 and 13 allege error in relation to the Tribunal's findings and conclusions, the Tribunal's assessments of the evidence before it, and the weight given to particular evidence. In particular, these grounds allege that the primary judge erred in not finding that the Tribunal erred: in not believing the appellant's brother was assaulted by the Sri Lankan Navy (ground 3); in not believing that the appellant's friend tried to lure him into being assaulted for his political belief (ground 4); in not believing the appellant's father was assaulted merely due to minor errors in the dates in the police reports (ground 5); in not finding that there was ample evidence of an "official quality" of the persecution suffered by the appellant (ground 6); in finding that because the appellant was a low level UNP supporter that he was essentially not valuable or important enough to suffer political oppression (ground 9); in finding that the appellant could return to Sri Lanka because the UNP was in power (ground 11); and in not finding that the appellant could face arbitrary detention for illegally leaving Sri Lanka upon his return (ground 13). 37 The primary judge held that the Tribunal's findings and conclusion were open on the material before the Tribunal and did not detect any defect in the Tribunal's reasoning (at [23], [24], [25], [28], [30], [32]). As counsel for the Minister observed at the hearing with regard to ground 6, the Tribunal made no specific finding about the "official quality" of the persecution that the appellant claimed to have suffered, and the primary judge's analysis at [25] of his reasons was consistent with this. There is no relevant error on his Honour's or the Tribunal's part in this regard. 38 These grounds are, in substance, complaints about the merits of the Tribunal's decision. They take issue with the facts found and the conclusions drawn by the Tribunal. There is, however, no evident error in the way the Tribunal went about its fact-finding task, and the appellant did not identify any particular error in the way it undertook this task. Rather, the appellant took issue with the findings the Tribunal made and the conclusions it reached on the merits of the appellant's protection visa application. In proceeding in this way, the appellant failed to establish an error of a "jurisdictional" kind leading a court to set aside the Tribunal's decision. 39 These grounds also seem to proceed on the assumption that the Federal Circuit Court should have made a different assessment of the evidence to that of the Tribunal and drawn different conclusions from that evidence. It is not, however, for the Federal Circuit Court in review proceedings (or for this Court on appeal) to substitute its opinion for that of the Tribunal as to whether the appellant's claims should be accepted on the material before the Tribunal. It is not for either Court to decide if the appellant is entitled to the protection visa he sought. That was a matter for the delegate and, on review, the Tribunal.

Grounds 8 and 14 40 Ground 8 claimed that the primary judge erred in not finding that the Tribunal substituted its own view in relation to whether the appellant experienced political oppression and fear due to his political view, in circumstances where the appellant genuinely and subjectively believed that he will be persecuted on the basis of his political opinion, particularly his support of the UNP in a majority SLFP area. Ground 14 raises a similar point, alleging that the primary judge erred in not finding it was not for the Tribunal to substitute its own personal opinion about whether the appellant would be charged and detained on return to Sri Lanka. 41 Relevantly, the primary judge held that he could discern no error in the relevant parts of the Tribunal's decision (at [27], [33]). His Honour said (at [27]) that: I do not accept as the [appellant] contended in paragraph 20 of his written submissions that the tribunal thereby substituted its own view. Whether or not the [appellant] genuinely and subjectively believed in a particular state of affairs was neither here nor there. The [appellant] was required to provide his evidence in sufficient detail as to enable the decision maker to establish the relevant facts … . There was no expression by the Tribunal of its own personal opinion, and the Tribunal correctly applied the facts to the legislative regime (at [33]). 42 There is no discernible error of the kind alleged by the appellant in his Honour's judgment. The Tribunal set out the relevant law correctly with respect to the refugee criterion in s 36(2)(a) and the complementary protection criterion in s 36(2)(aa) of the Migration Act, and then made its findings on the basis of the law. There is nothing in the Tribunal's reasons to indicate that its findings were not reasonably open to it on the evidence before it. The Tribunal made findings rejecting important aspects of the appellant's claims. This does not, however, mean that the Tribunal substituted its own views for that of the appellant. Rather, the Tribunal made its own independent determination of these matters, based on the material before it.

Ground 10 43 Ground 10 alleges that the primary judge erred in not finding that the Tribunal erred by placing too much emphasis on generic country reports and the CMEV website. The primary judge stated that it is for the Tribunal to determine the weight to give items of country information, and the choice and interpretation of country information is generally a matter for the Tribunal (at [29]). 44 There is no error shown in his Honour's reasons at this point. It is well established that it is generally a matter for the Tribunal to determine the country information that it considers most cogent and the weight to give it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; CSJ15 v Minister for Immigration and Border Protection [2017] FCA 1463 at [40]. As indicated above in relation to ground 2, the Tribunal's reasons reveal that it considered a range of sources of country information and weighed them up in reaching its decision.

Ground 12 45 By ground 12, the appellant asserted that the primary judge erred in not finding that the Tribunal erred in failing to give proper weight to his contentions about being persecuted as a failed asylum seeker if returned to Sri Lanka. In my view, this allegation has no foundation. 46 Notwithstanding that the appellant did not make an explicit claim in this regard, the Tribunal gave detailed consideration to the appellant's circumstances as a failed asylum seeker at [42]-[59] of its reasons. The Tribunal reviewed relevant country information at [43]-[48] of its reasons. It recorded that it: discussed this information with the [appellant], including whether he had any fears being harmed while being asked questions about his manner of departure and return to Sri Lanka, that the country information available showed that he would be interviewed by the [Criminal Investigation Department] and the [State Intelligence Service] on arrival in Sri Lanka. The [appellant] confirmed that he had no reason to believe he was on an immigration watchlist, had no outstanding criminal charges or involvement in people smuggling. I asked if the [appellant] had any fears about this process and he indicated he did not. (emphasis added) Having regard to the country information and to the appellant's circumstances, the Tribunal concluded that the appellant faced no real chance of serious harm as a Sri Lankan male returning as a failed asylum seeker from Australia (at [58]). 47 The appellant has not identified which of his contentions about being persecuted as a failed asylum seeker the Tribunal supposedly failed to give sufficient weight to (assuming this might establish jurisdictional error, which I doubt). More broadly, it has not been shown that the Tribunal failed to consider any aspect of the appellant's contentions about being a returning failed asylum seeker. Ground 12 must therefore fail.

Ground 15 48 Ground 15 alleges that the primary judge erred in not finding that the appellant is a legitimate and lawful asylum seeker and should be permitted to remain in Australia pursuant to Australia's protection obligations. As the primary judge indicated at [34], it appears that the appellant has misunderstood the function of the primary judge on judicial review. The task of the primary judge was to determine whether or not the Tribunal's decision involved jurisdictional error. It was not open to his Honour to make his own independent assessment of the appellant's claims and evidence.

Ground 16 49 Ground 16 asserted that the appellant should be granted a protection visa. This is not a matter for this Court to consider on appeal, just as it was not a matter for the primary judge. The appellant has apparently failed to appreciate that it is not open to this Court to determine whether or not he should be granted the protection visa he seeks. The Court's task is to determine whether the judgment of the Federal Circuit Court involved appellable error, which in a case such as this required consideration of whether the primary judge erred in finding that the appellant had not established that there was jurisdictional error in the decision of the Tribunal.

Ground 17 50 Ground 17 asserts that the primary judge erred in law and/or fact in taking into account irrelevant facts, materials and evidence, and in failing to take into account relevant facts, material and evidence. The appellant has not provided any particulars of the facts, material, and evidence that the primary judge is said to have impermissibly taken, or failed to take, into account. The appellant has not identified any relevant error and the Court is unable to discern one.

Ground 18 51 Ground 18 states that the primary judge erred in law and/or in fact by awarding costs against the appellant. There is no basis for this allegation on the material before the Court. The appellant has not established that the primary judge erred in exercising the discretion to award costs.

Disposition 52 For the foregoing reasons, the appeal should be dismissed. In the event the appeal was dismissed, the Minister sought his costs fixed in the amount of $3,500. I consider that such an order is appropriate in all the circumstances of the case. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.