SZTKE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. Leave be refused to rely upon ground 2 in the further amended notice of appeal dated 8 September 2021 and filed by leave on 15 September 2021.
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia). By those orders the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal, the second respondent, was dismissed with costs. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the grant of a protection visa to the appellant. That was the second Tribunal decision, a prior decision of the former Refugee Review Tribunal (RRT) having been quashed. 2 The appellant, a citizen of Sri Lanka, arrived in Australia by boat in mid-2012 and applied for a protection visa later that year. His initial claims were in a statutory declaration accompanying his application. The claims that he made dealt with events in the period leading up to his departure from Sri Lanka to come to Australia and may be summarised as follows. 3 In 2009, he was injured during a shelling attack during the war between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE), but could not seek immediate medical treatment. The following month, the SLA was rounding up people in the area and as part of that he was taken to a military detention camp. About a week later, he was interrogated and as part of that assaulted with batons, with that being repeated a few days later. A month or so after that, he was released, after his family paid a bribe. At the time of being released, he was told by camp officials to avoid being seen as he did not have documents to show he had been released. He felt traumatised and feared for his life, so decided to leave Sri Lanka and go to India. He returned to Sir Lanka less than a year later in 2010 as his family told him things had improved slightly and they wanted him home. A month or so later, plain-clothed men came to the family business and asked for him, were told he no longer worked there, and told a sibling to advise them if he returned. After that incident he stopped working for the family business. About 18 months later in 2012, people who had been released from the camp started being rounded up again, including a friend who has not been seen since. The appellant feared for his safety, including that he would be rounded up again or would disappear, and thought he could not remain in Sri Lanka. The next month he began making arrangements to leave and soon after that in mid-2012 he left Sri Lanka by boat for Australia. 4 The above claims were subject to scrutiny by the Minister's delegate, with some inconsistencies emerging and aspects of the claims changing throughout the questioning process. The RRT noted that the appellant stated that neither he nor any family members had any connection with the LTTE or other Tamil groups. That statement assumed some significance before the Tribunal, before the primary judge, and in this appeal. 5 The main reason that the appellant's visa application failed was that the delegate, after considering country information, did not accept that he was of ongoing interest to the Sri Lankan authorities because of any imputed association with the LTTE prior to his departure. The delegate was also satisfied that the appellant did not fit the profile of returned Tamils whom the Sri Lankan authorities would be interested in because of any real or perceived link with the LTTE. Nor was the delegate satisfied that there was a real risk of the appellant facing significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka so as to give rise to complementary protection obligations. 6 The delegate's decision was affirmed by the RRT, and an application for judicial review failed in the Federal Circuit Court. As an additional claim, he told the RRT he had undertaken compulsory training with the LTTE, but did not make any claims of being a member of the LTTE or of being a combatant in the civil conflict. The RRT decision was quashed by a judge of this Court and remitted to be heard and determined afresh. That re-determination was done by the Administrative Appeals Tribunal. As part of that process, the Tribunal advised the appellant's migration agent that he should provide a written submission setting out all claims made and maintained. Part of the response was the provision of a one-page witness statement for a witness who was called at the subsequent Tribunal hearing. 7 The burden of the witness statement was that the appellant was a casual friend whom he had met in Sri Lanka in 2007, and later met again in Sydney and continued the friendship. The statement said that: (1) in 2007 the witness was working for the LTTE as a driver, transporting LTTE fighters, food, medicine and sometimes materials, and on occasion was required to carry back wounded or killed LTTE fighters; (2) around that time, as a driver the witness picked up the appellant "several times and took him to his workplace"; and (3) the witness was able to confirm that the appellant was a member of the LTTE. 8 The appellant's claims before the Tribunal included those before the delegate, but were made fundamentally and qualitatively different by the addition of a new claim that he was a former member and combatant in the LTTE from 2007, and that the injury he had sustained two years later in 2009 was as a member of the LTTE. 9 The appellant attended a hearing of the Tribunal in June 2016. He provided to the Tribunal written submissions, a letter from the Tamil Coordination Committee of May 2016 concerning Tamil diaspora activities in Australia, a report by a mental health social worker dated 18 May 2016 which contained the first reference to the claim to be a member and combatant of the LTTE, and certain other documents. He also provided post-hearing submissions and items of country information on the situation in Sri Lanka. 10 Towards the end of the Tribunal hearing the appellant stated that in 2007 he undertook compulsory training with the LTTE when he was in their controlled area, that one person from every home had to join the LTTE and that he had done so. He said he received training in operating a mortar which was the activity he was engaged in when he was injured two years later in 2009. He relied upon the 2016 social work report where the author stated that the appellant had disclosed that he had been a member of the LTTE since he was 18 and had not mentioned this because he feared being detained and deported to Sri Lanka, raising this for the first time in person at the Tribunal hearing in June 2016. As noted above, he had told the RRT he had undertaken compulsory training, but had not made any claims of being a member of the LTTE or of being a combatant in the civil conflict. 11 The Tribunal accepted the appellant's age, Tamil ethnicity, that he was born in the northern area of Sri Lanka, and that he and his family moved from place to place in the north and east to avoid the military conflict between the LTTE and the SLA during the years of civil conflict. The Tribunal also accepted that close relatives may have once been suspected of LTTE involvement, but stated that the evidence indicated that they were living in Sri Lanka and did not currently have any problems with authorities. The key reasons of the Tribunal relevant to this appeal were as follows: [28] The delegate's decision record notes that the applicant stated that neither he nor any family members had any connection to the LTTE or other Tamil groups. He claimed that his family had avoided being in the LTTE by one older brother moving to [a town] in 1998 and living with an aunt because the LTTE had been recruiting at that time. He stated that his younger brother … had moved to [the town] in 1999, though later returned to [another town] during a period of peace. His brother in [another country] had been suspected of being in the LTTE as he had been living in the [the other town] and it was mandatory at the time to go through training with the LTTE. The applicant was born in the [the second town] but had obtained a card that said he was born in [the first town]. He claimed his deceased father had been a supporter of the LTTE. … [38] The applicant brought a witness to the hearing who claimed he was of Tamil ethnicity and that he came to Australia in 2012 and that he had applied for a protection visa. He claimed he was a driver for the LTTE in 2007 and that he had transported the applicant and other members [between two towns] in his truck. He stated that he had not had any other contact with the applicant in Sri Lanka and they happened to meet each other in 2013 at a local function in the community centre in [a suburb of Sydney]. [39] The applicant also provided a social work report where the author of the report stated that he had been referred in February 2016 for counselling. That report indicated that he had disclosed that he had been a member of the LTTE since he was 18 years of age and that he had not mentioned this when he was in detention in Australia because he feared he would be detained and deported to Sri Lanka. [40] The applicant agreed that he had not mentioned his claim that he was member of the LTTE and a combatant until he attended the Tribunal hearing on 1 June 2016. He had told the previous Member that he had undertaken compulsory training but had not made any claims of being a member of the LTTE or a combatant in the civil conflict. [41] He stated that he had not mentioned this claim earlier in [the] application or review process because he feared that he might be taken into detention if he admitted his LTTE membership. He agreed that he had the advice of a representative from the time he made his protection visa application in 2012. However, he did not explain why he had now decided to disclose this information if he was afraid of being taken into detention. [42] The Tribunal has considered the evidence of the applicant carefully and taken into account the evidence given by his witness and the [social worker's] evidence provided on 18 May 2016. It accepts that the applicant was born in [a town] and that he lived in an LTTE controlled area through much of the civil conflict. It also accepts that the applicant may have gone through compulsory training with the LTTE during the time he lived in [another area]. However, it does not accept that he became a member of the LTTE or that he was a combatant for the period of time he claims. [43] The applicant first made the claim that he attended compulsory LTTE training at the Tribunal hearing in 2013 and then later made the claim that he had been a member and combatant in 2016. At the interview with the delegate and in the Tribunal hearing he emphatically stated that he had not been a member of the LTTE and that, other than for his cousin, none of his family members had been members of the LTTE. By way of explanation for his earlier evidence he stated that he was afraid that he would be taken into detention in Australia if he admitted his involvement in the LTTE, however, if this was so, he did not explain why he decided to disclose this information at the Tribunal hearing in June 2016. [44] Further the Tribunal found his account of involvement as a combatant in the conflict to be vague and lacking in detail. He claimed he belonged to a unit and they moved around a lot but could not recall from where they operated. [45] The applicant found it very difficult to give any detail of his claims of membership of the LTTE or his involvement in combat. It did not appear that he could recall any relevant details of the period between 2007 and 2009 and the Tribunal does not consider he satisfactorily accounted for his movements in that period. [46] The Tribunal finds that the applicant may have undergone compulsory LTTE training including weapon training and may have attended a military camp run by the LTTE in 2007. The Tribunal has given no weight to the evidence given by the witness. The Tribunal did not find that his evidence that he recalled the applicant from one contact in 2007 when the applicant was apparently in a group of 10 other group members was reliable. The Tribunal does not accept that the applicant was a member of the LTTE or that he was a combatant from 2007 until March 2009. … [58] The Tribunal does not accept the account of events given at the Tribunal hearing in June 2016. It considers that the applicant has changed his evidence to be consistent with his new claim that he was a member of the LTTE and a combatant at the time of the shelling incident. However, his earlier evidence was consistent with his initial claims and the Tribunal prefers that account of events to that given at the later Tribunal hearing. … [88] The applicant's representative made submissions that the applicant had been involved in Tamil activities in Australia following his arrival. He referred to a letter from the Tamil Association, which indicated that he was involved in a protest in Canberra against the visit by the Sri Lankan Foreign Minister. He stated that photographs of the protesters were taken by Sri Lankan authorities. He also stated that the applicant attended Tamil activities on Australia Day. As this appeared to be in the nature of a social event the Tribunal put it to him this did not appear to be particularly controversial. The applicant also attended Martyrs celebrations. He claimed these activities were monitored. … [132] The applicant claims to attend activities organised by the Tamil Co-ordination Committee in Australia. These involve attendance at social events, a protest against the Sri Lankan government and attendance at Martyrs/Remembrance Day. [133] Whilst the Tribunal accepts that the applicant may attend these events it does not consider that attendance at these events, on its own, would give him a profile which would be adverse. There is no evidence that he is an activist involved in separatist activities and the Tribunal does not accept that he would face a real chance of harm for reasons of his attendance at Tamil diaspora activities. 12 Before the primary judge, the appellant was represented by counsel, who has since died. His then counsel pressed two out of six grounds of review. Those two grounds are in substance pressed on appeal, one having been abandoned and then sought to be reinstated. Leave is sought to advance a further ground that was never raised before his Honour.