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[2015] FCA 1524
Federal Court of Australia
2015-11-13
Wigney J
Original judgment source is linked above.
REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) 1 The appellant is a citizen of Sri Lanka. In mid-2012, he attempted to travel to Australia by boat without any visa or travel papers. He ended up arriving on Christmas Island on 5 June 2012 as a so-called "Offshore Entry Person". On 10 September 2012, the first respondent, the Minister for Immigration and Border Protection (Minister), determined that the appellant was not precluded by s 46A of the Migration Act 1958 (Cth) (the Act) from applying for a visa. The appellant subsequently applied for a protection visa under s 36 of the Act. His visa application was refused by a delegate of the Minister. That refusal decision was affirmed on review by the second respondent, then the Refugee Review Tribunal (Tribunal). Undeterred, the appellant then sought judicial review of the Tribunal's decision in the Federal Circuit Court of Australia, alleging jurisdictional error on the part of the Tribunal. That application was dismissed on 31 July 2015. The appellant now appeals from the judgment of the Federal Circuit Court dismissing his review application.
The visa application and the tribunal's decision 2 The appellant claimed that he was entitled to a protection visa on the basis that he had a well-founded fear that he would be persecuted if he was forced to return to Sri Lanka on account of his Tamil ethnicity and because the Sri Lankan authorities would perceive or suspect that he was involved in some way with the Liberation Tigers of Tamil Eelam (the LTTE). The appellant claimed to fear harm from the local police and security authorities, and from the Sinhalese community in Sri Lanka. 3 In light of the relatively narrow issues that ultimately arose on this appeal, it is unnecessary to detail all the claims and evidence that the appellant advanced in support of his visa and review applications. The Tribunal's reasons contain a fairly exhaustive recitation of the appellant's case. It is unnecessary to rehearse that detailed account here. 4 In very brief terms, the appellant claimed that his uncle had been an active member of the LTTE in 2003 and 2004. At some stage, the appellant's uncle was imprisoned for about a year and a half as a result of his involvement with the LTTE. In about 2010, after his release from gaol, the appellant's uncle came to live with the appellant's family. That appears to have excited the interest of the local authorities. On the appellant's account, officers from the Criminal Investigation Department of the Sri Lankan police (the CID) visited the appellant and questioned him about his uncle's activities. The appellant's uncle eventually left to live elsewhere, however the local authorities continued to visit the house where the appellant and his family lived. The appellant claimed that his father was also questioned by the CID about the whereabouts of his uncle on a number of occasions in 2011 and 2012. 5 According to the appellant, at some stage when the family was away from the house, people in a white van came to the house and damaged it. On another occasion, in March 2012, the CID came to the family home to question the appellant's father. The father was not there at the time. The CID warned the appellant's mother that they would shoot the appellant and his father. 6 The appellant claimed that this episode caused him to leave his family home. He stayed at a number of places in Sri Lanka until he eventually travelled to Australia. The appellant claimed that his mother has since told him that the police have come looking for him since his departure. 7 The appellant claimed that he was afraid to return to Sri Lanka because he left the country illegally and he would be killed by the CID or related groups because of the events which occurred before he left. 8 Unfortunately for the appellant, the Tribunal did not believe most of his evidence and claims. 9 The appellant gave evidence before the Tribunal and repeated the claims that he had earlier made in support of his visa application. The Tribunal expressed concerns about the appellant's credibility. Those concerns largely emanated from apparent inconsistencies between the claims that the appellant made in his original statement, the claims he articulated to the Minister's delegate during an interview with the delegate, and the claims he advanced in the course of the evidence that he gave at the Tribunal hearing. 10 The Tribunal ultimately concluded that the appellant was not a witness of truth and that his account of events on which his protection claims were based was false. It is unnecessary at this stage to expand on the Tribunal's reasoning in regard to the appellant's credibility and its findings that his claims were false. Those findings were not the subject of the judicial review application in the court below, and were not the subject of the appellant's notice of appeal. That said, the appellant's oral submissions at the hearing of his appeal were directed entirely to the adverse credibility findings made by the Tribunal. It will accordingly be necessary to return to say something more about that issue in due course. 11 The grounds upon which the appellant challenged the Tribunal's decision in the court below focussed mainly on the findings the Tribunal made about whether the appellant either had a well-founded fear of persecution, or whether there was a real risk that he will suffer significant harm if returned to Sri Lanka, on the basis that he was a Tamil returning to Sri Lanka involuntarily after an unsuccessful asylum claim abroad. In relation to that matter, the Tribunal gave detailed consideration to so-called "country information" from reputable sources about the existence or otherwise of risks faced by failed Tamil asylum seekers upon their return to Sri Lanka. 12 The Tribunal's conclusions based on the material before it on this issue were succinctly summarised in the following terms at [170] and [175] of its reasons: 170. For the reasons given above, the Tribunal finds that the risk of the applicant suffering serious harm because he is Tamil, because of his age, gender, place of origin in Sri Lanka, because he will return there as a failed asylum seeker from Australia is remote. The risk of the applicant being imprisoned for his illegal departure is remote and the risk of the applicant suffering serious harm through the possibility of being briefly kept in remand before being brought before a magistrate is also remote. … 175. While there is a possibility the applicant may be held briefly in remand before being brought before a magistrate as regards his illegal departure, the Tribunal considers that this does not amount to a real risk of the applicant suffering significant harm. The Tribunal finds the risk of the applicant being given a jail sentence for his illegal departure is remote and the imposition of a fine of the range mentioned in country information earlier in this decision does not amount to significant harm as that term is defined in the Act. 13 As can be seen, [170] of the Tribunal's reasons addressed its findings in terms of the Refugee Convention criterion in s 36(2)(a) of the Act. Paragraph 175 of the reasons addressed the factual findings in terms of the complementary protection criterion in s 36(2)(aa) of the Act.
The Federal Circuit Court Proceedings and Judgment 14 The appellant's amended application in the Federal Circuit Court contained four grounds. Only grounds one, two and four were ultimately pressed at the hearing. Those grounds were in the following terms: 1. The Tribunal made legal errors in asking itself the wrong question about the outcome of a process instead of assessing the risk of harm to the applicant. PARTICULARS a. At [123] and [175] the Tribunal assessed whether the applicant would be given a jail sentence or a fine and failed to assess whether the applicant would be at risk of suffering serious or significant harm during the process. 2. The Tribunal made a legal error in failing to consider the risk of harm to the applicant after being convicted of illegal departure from Sri Lanka and returning to his nominated address. … 4. The Tribunal made a legal error in applying the wrong test. PARTICULARS a. At [172] and [173], the Tribunal explicitly conflated the tests under section 36(2)(a) and 36(2)(aa) of the Migration Act - making the findings under complementary protection for the same reasons as those made under the Refugee Convention; b. At [174], the Tribunal's reasoning is confined to whether the harm could flow as a result of his Refugee convention-related nexus - namely "because he is a young Tamil male from Udapu and will return there as a f[a]iled asylum seeker"; c. At [174], the Tribunal found there is no credible evidence that Sri Lankan authorities or anyone else in Sri Lanka "wish" to harm the applicant, drawing into the test under complementary protection the element of motivation on the part of those who would persecute as required under the Refugee convention; and d. At [175], the Tribunal has failed to apply the "real chance" test to the findings there stated, preferring a balance of probabilities formulation. 15 The primary judge rejected each of those grounds and dismissed the application. 16 In relation to ground one, the primary judge rejected the appellant's submission that the Tribunal was focussed on the outcome of the process the appellant would face on return to Sri Lanka, rather than the risk of harm to the appellant during that process. The appellant's argument appeared to be that the Tribunal only made findings concerning whether the appellant would ultimately be either gaoled or fined as a person who had illegally departed Sri Lanka, and ignored the risk of harm faced by the appellant during the period of detention on remand. 17 The primary judge carefully reviewed the Tribunal's reasons and found that the appellant's argument that the Tribunal did not consider that aspect of his claim must be rejected on any plain reading of the Tribunal's decision and reasons. The Tribunal clearly addressed and made findings about the risk of harm to the appellant when initially detained upon his return. The primary judge referred, in particular, to the Tribunal's findings and reasons on this topic at [118], [119], [120], [123], [124], [162]-[164], [170] and [175] of its reasons. The primary judge's ultimate conclusion in relation to ground one was succinctly stated at [27] of the judgment under appeal in the following terms: Given the Tribunal's plain language used in its analysis, and clear findings, it is difficult to see how the applicant conceived the ground as raising an arguable case, let alone that it revealed jurisdictional error. 18 In the context of ground one, the primary judge also considered and rejected an argument advanced by the appellant to the effect that in addressing this and other aspects of his claims, the Tribunal wrongly applied a balance of probabilities test, rather than a real chance test. That argument was apparently based on the language used by the Tribunal in expressing some of its findings. 19 The primary judge's rejection of the appellant's arguments in that regard is succinctly stated at [38] and [39] of the judgment under appeal in the following terms: In the current case, the Tribunal identified the correct test, as it applied to the criteria at s.36(2)(a) ([13] at CB 167) and s.36(2)(aa) of the Act ([19] at CB 168, see also the reference there to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505). There is nothing in the language used elsewhere by the Tribunal in its decision record to suggest it misunderstood the correct test, or that it applied the wrong test. The applicant referred to phrases used by the Tribunal such as "may be held in remand" or "the most likely outcome" to argue that this revealed that the Tribunal applied the wrong test. When these are read in context, that is fairly, and in light of Wu Shan Liang (at [50] - [51]), they are reflective of the Tribunal's evaluation of the evidence and country information, but otherwise within the context of the correct test. In all, ground one does not succeed. 20 It is unnecessary to detail the primary judge's rejection of grounds two and four of the amended application. The primary judge's findings in relation to those grounds are not the subject of the appellant's appeal grounds. Nor were they the subject of any submission made by the appellant in support of his appeal.
Appeal grounds and submissions 21 The appellant's notice of appeal contains two grounds in the following terms: 1. The learned judge erred in finding that the Tribunal did assess the appellant claims when in fact it was only focussed on the outcome of the process the appellant would face on return at the Airport rather than assessing the risk of the harm to the appellant during the process. 2. The learned judge erred in finding that the Tribunal did not apply the wrong test, namely the balance of probabilities test, rather than the real chance test when assessing the appellant's claim. 22 As earlier indicated, the appellant's oral submissions in support of his appeal did not engage with either of those two appeal grounds. They focussed almost entirely on the adverse credibility findings made by the Tribunal. The appellant submitted that all of the claims that he made in support of his protection visa application were true. He maintained that his uncle was in the LTTE and that it was true that persons came to his home and interrogated him and his father in relation to his uncle's activities. The appellant submitted that, contrary to the Tribunal's findings, there were in fact no inconsistencies in the accounts that he gave of those events in Sri Lanka.
Consideration of appeal grounds 23 The appellant has not pointed to any, let alone any arguable, reason for finding that the primary judge erred as contended in appeal ground one. Appeal ground one appears to be directed at the primary judge's rejection of ground one of his amended application in the court below. The primary judge was plainly correct to reject that ground and the submissions advanced in support of it for the reasons his Honour gave. 24 The Tribunal not only considered and made findings about the outcome of the process faced by failed asylum seekers upon their return to Sri Lanka, it also considered and made clear findings in relation to the risk of harm during that process, including at the airport and on remand. The contention that the Tribunal made legal errors, or asked itself the wrong question, in relation to that aspect of the appellant's case was and is without foundation. 25 Likewise, the appellant has failed to point to any reason why the primary judge erred in rejecting the appellant's argument that the Tribunal wrongly applied a balance of probabilities test, rather than a real chance test. Any fair reading of the Tribunal's reasons clearly reveals that the Tribunal applied the correct test in conducting its review of the refusal of the appellant's protection visa application. The primary judge was correct to dismiss the appellant's arguments to the contrary for the reasons his Honour gave. 26 It remains to briefly consider the appellant's submissions in relation to the adverse credibility findings made by the Tribunal. 27 Even putting aside the fact that those findings were not challenged in the court below, it is clear from the Tribunal's reasons that the findings it made in relation to the appellant's credibility were open to the Tribunal on the material before it. 28 As has been said by this Court on many occasions, findings of fact, and in particular findings about the truthfulness and credibility of evidence given by a review applicant, are quintessentially matters for the Tribunal. Whilst such findings are not completely immune from review, they can only be attacked if jurisdictional error is demonstrated. That is plainly not the case here. 29 The appellant's submission that there were in fact no inconsistencies in the various accounts he gave of the events that he claimed occurred to him in Sri Lanka is without foundation. It is readily apparent that, before the Tribunal, the appellant, through his advisers, conceded that there were differences between the various accounts he had given in relation to the events in Sri Lanka. The submissions that were advanced on behalf of the appellant before the Tribunal sought to explain those inconsistencies. The Tribunal did not accept those explanations. 30 Given that the appellant has failed to demonstrate any error on the part of the primary judge, the appeal must be dismissed with costs. 31 The orders of the Court are as follows:
SZTFM
Minister for Immigration and Border Protection
(2013) 210 FCR 505