WZATL v Minister for Immigration and Border Protection

Delegate's decision 8 The delegate was not satisfied that the appellant was a truthful witness and believed that he had fabricated certain aspects of his claims for protection. 9 The delegate nonetheless found that, for the purposes of s 91R(1)(a) of the Act, the Convention grounds of race, political opinion, membership of a particular social group and religion were the essential and significant reasons for the harm feared. The delegate was further satisfied that the harm feared, being interrogation, abduction, torture or being killed, was serious harm and systematic and discriminatory conduct as required by s 91R(1)(b) and (c) of the Act. Consequently, the delegate was satisfied that the harm feared amounted to persecution. 10 However, the delegate was not satisfied that the appellant had a real chance of being persecuted for a Convention reason, and therefore found that the appellant's fear of persecution was not well-founded. As a result, the delegate was not satisfied that Australia owed protection obligations to the appellant under the Convention, and so the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act. 11 With regard to whether Australia owed the appellant protection obligations under s 36(2)(aa) of the Act, although the delegate accepted the claimed harm amounted to significant harm for the purposes of s 36(2A), the delegate was not satisfied there was a real risk that the appellant would be targeted and subjected to significant harm because of his Tamil ethnicity, any actual or imputed LTTE association, being perceived as a failed asylum seeker, or because of his religion. 12 Consequently, the delegate was also not satisfied that Australia had protection obligations to the appellant under s 36(2)(aa) of the Act. The appellant therefore did not satisfy the criteria for the grant of a protection visa under that section. 13 The appellant then sought merits review of the delegate's decision in the Tribunal.

Tribunal's decision 14 The appellant, together with his representative, attended a Tribunal hearing on 8 April 2013. At the hearing, the appellant provided further information in response to the Tribunal's questions, including those directed to country information and facts that the Tribunal apparently considered adverse to the appellant. 15 On 15 April 2013, the Tribunal received further written submissions from the appellant's representative providing further information about the current circumstances for Tamils and failed asylum seekers in Sri Lanka. 16 On the evidence before it, the Tribunal accepted the appellant was Tamil; that he worked as a fisherman for his adult life; that he worked and resided in and around Mullaitivu between 2000 and 2006; and that, before the end of the conflict with the LTTE in 2009, young adult Tamil males working in Mullaitivu, like the appellant, faced a real risk of harm at the hands of the Sri Lankan government because many were suspected to support or be involved with the LTTE. However, having regard to country information, the Tribunal found that, after the end of that conflict in 2009, the Sri Lankan authorities focused their attention on individual Tamils clearly identified as having been members or supporters of the LTTE, rather than assuming that all Tamils in northern Sri Lanka were connected with the LTTE. 17 The Tribunal did not consider the appellant a truthful witness. In particular, it did not accept that he was detained, kidnapped, questioned or physically abused by the authorities or any group of men; that he had to attend hospital for treatment as a result of abuse suffered at the hands of the authorities or men who kidnapped him; and that government officers were looking for the appellant in any way at any time. The Tribunal also did not accept that the appellant's brother had sought or been granted refugee status in the United Kingdom, or that the appellant or any of his family members supported the LTTE or opposed the Sri Lankan government, or would do so in the future. 18 The Tribunal further found that it was likely the appellant would be charged for breaching Sri Lankan departure laws if returned to Sri Lanka, and subsequently held on remand. However, it considered it likely that the appellant's family would be able to provide a personal guarantee in order for the appellant to be released on bail. 19 With regard to the appellant's claims to fear harm due to his Tamil ethnicity, the Tribunal found that, in light of the country information before it, which the Tribunal raised with the appellant, it was only Tamils who otherwise had a history of actively supporting the LTTE or opposing the Sri Lankan government, or who were currently actively opposed to the government, particularly in relation to its treatment of Tamils, that faced a risk of harm at the hands of the Sri Lankan authorities that could be said to be more than remote. Consequently, the Tribunal did not accept that, solely on account of his ethnicity, the appellant faced a real chance of suffering serious harm at the hands of the Sri Lankan authorities or the Sinhalese community if he returned to Sri Lanka. 20 The Tribunal also did not accept that the appellant faced a real chance of serious harm because of an actual or imputed political opinion, or because he was a member of the particular social groups comprising "Sri Lankan Tamils", "Tamils from northern or eastern Sri Lanka", "failed asylum seekers from Sri Lanka" or "Tamils who have fled Sri Lanka illegally and unsuccessfully sought asylum in Australia". In this regard, the Tribunal found that, having regard to relevant country information, the appellant would not be imputed to be a supporter of the LTTE or to be opposed to the current Sri Lankan government, solely on account of his Tamil ethnicity or because of his profile as a Tamil from northern Sri Lanka who lived and worked in Mullaitivu between 2000 and 2006. 21 The Tribunal noted that country information suggested that failed Tamil asylum seekers returning to Sri Lanka only appeared to be specifically targeted due to perceived or actual links with the LTTE or opposition to the current Sri Lankan government. For the same reasons at [17] above, the Tribunal did not accept the appellant would be perceived to have been a supporter of the LTTE or to actively oppose the current Sri Lankan government solely because he was Tamil, was from northern or eastern Sri Lanka, had lived and worked in Mullaitivu, was a failed asylum seeker, or for any other reason. 22 In reliance on various sources of country information, the Tribunal found that the appellant was likely to be charged with breach of Sri Lankan departure laws and placed in remand on his return to Sri Lanka. However, the Tribunal noted that the application of these laws was not selective or discriminatory, and that the chances of the appellant not being granted bail within a few days; being sentenced to a term of imprisonment; or being unable to pay any fine imposed, were extremely remote. In reliance on country information regarding prison conditions in Sri Lanka, the Tribunal further found the appellant did not face a real chance of being seriously harmed because he was Tamil, or of being treated in worse ways while in prison than non-Tamil prisoners, while he was imprisoned on remand. 23 As a result, the Tribunal did not accept that the appellant would encounter serious harm capable of amounting to persecution under s 91R of the Act for any of the stated reasons, individually or cumulatively, in the reasonably foreseeable future should he return to Sri Lanka. 24 For the same reasons, the Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk he would suffer significant harm. 25 Ultimately, the Tribunal was not satisfied the appellant was a person in respect of whom Australia had protection obligations under the Convention or under s 36(2)(aa). The appellant therefore did not satisfy the criteria for a protection visa under s 36(2)(a) or s 36(2)(aa), and the Tribunal affirmed the delegate's decision. 26 The appellant then sought judicial review of the Tribunal's decision in the Federal Circuit Court of Australia.

Judicial Review in the federal circuit court 27 In his application for judicial review of the Tribunal's decision dated 4 November 2013, the appellant raised the following grounds: 1. JURISDICTIONAL ERROR 2. NOT FOLLOWING PROPER PROCEDURE 3. NOT FOLLOWING RULES OF NATURAL JUSTICE 28 On 27 November 2013, the primary judge ordered that the appellant file and serve, on or before 18 February 2014, an amended application giving particulars of the grounds of review, and any further affidavits on which he intended to rely; orders which were not complied with. 29 When the matter came on for hearing on 27 May 2014, the hearing was adjourned to 12 August 2014 and an order made that time for compliance with orders made 27 November 2013 be extended to 14 July 2014. On 23 July 2014, the appellant filed an affidavit comprising submissions. 30 At the further hearing of the matter, on 12 August 2014, the appellant handed up submissions and the hearing was further adjourned pending the outcome of proceedings in the High Court arising from the judgment of this Court in WZAPN v Minister for Immigration & Anor (2014) 229 FCR 477; [2014] FCA 947. See Minister for Immigration and Border Protection v WZAPN and Another; WZARV v Minister for Immigration and Border Protection and Another (2015) 254 CLR 610; [2015] HCA 22. In those submissions, the appellant raised an additional ground for review - that the Tribunal was prejudiced by the policy statements issued by the Minister against asylum seekers who arrived by boat in Australia and by reports of the Department of Foreign Affairs and Trade (DFAT). 31 After the High Court's judgment was delivered on 17 June 2015, the hearing of the application resumed on 17 July 2015. At the hearing, the appellant handed up further submissions alleging that, in essence, the Tribunal failed to consider complementary protection provisions under the Act. 32 With regard to ground 1, the primary judge, by reference to the appellant's further written submissions, noted that what was put by the appellant, in essence, was that the Tribunal failed to exercise jurisdiction because it failed to have regard to relevant material or failed to consider claims made by the appellant. In particular, the appellant claimed the Tribunal erred in relying solely on DFAT's reports rather than an Amnesty International report of 26 June 2014 and Human Rights Watch information; failed to examine the implications of the appellant's treatment and detention by Sri Lankan authorities; and failed to have regard to the implications of Sri Lankan departure laws and their application to failed asylum seekers, such as the appellant, upon their return to Sri Lanka. 33 Having noted the Tribunal's reasoning regarding the appellant's alleged treatment and detention by Sri Lankan security forces, at [15]-[34] of the primary judge's reasons, his Honour held that, in the circumstances, the appellant's assertion in this regard was not made out. Further, the primary judge held that the appellant's assertion that the Tribunal relied "only" or "mainly" on DFAT reports was plainly wrong when regard was had to the range of country information to which the Tribunal did have regard, including information from Human Rights Watch. His Honour noted that, in circumstances where the Amnesty International report post-dated the Tribunal's decision by eight months and was therefore not before the Tribunal for consideration, it was not open for the Court to have regard to such material on an application for judicial review of that decision. Finally, the primary judge noted that the Tribunal expressly considered the application of Sri Lankan departure laws in relation to the appellant's possible return to Sri Lanka as a failed asylum seeker. As a result, his Honour held that no jurisdictional error was apparent in the Tribunal's consideration of those laws. 34 In the result, the primary judge held the allegation of jurisdictional error in ground 1 was not made out. 35 With regard to grounds 2 and 3, the primary judge noted the appellant made no express submissions with respect to the Tribunal's alleged failure to afford procedural fairness or natural justice. Further, his Honour considered there was nothing from which the Court could imply such a failure. 36 Pursuant to s 422B of the Act, the primary judge noted that the requirements of procedural fairness for an application such as that before the Tribunal were exhaustively set out in Pt 7, Div 4 of the Act. His Honour noted that no breach of those provisions had been identified, nor was any evident on the materials before the Court. In circumstances where the appellant led no evidence contradicting the procedural and evidentiary narrative set out in the Tribunal's decision, the Court accepted that narrative. 37 In the circumstances, the primary judge found grounds 2 and 3 were not made out as there was no failure by the Tribunal to afford the appellant the procedural fairness required under the Act. 38 The primary judge further concluded that the appellant's additional ground of bias was not made out. In support of this ground, the appellant, by his August 2014 submissions, stated that the "document marked A", being a blank page with text apparently constituting a newspaper article entitled "Scott Morrison attacks critics of Sri Lanka" with no date or attribution of a source, clearly indicated that the Minister was prejudiced in his attitude to Sri Lankan Tamil asylum seekers and, by his policy statements, influenced the Tribunal's decision. 39 His Honour noted the Tribunal properly raised various concerns with the appellant and provided him the opportunity to persuade the Tribunal in relation to his claims. Consequently, his Honour held the Tribunal's decision did not demonstrate pre-judgment or give rise to a reasonable apprehension of pre-judgment. With regard to the bias alleged to arise from the "document marked A", the primary judge noted that, even if the statements contained in the document were made by the Minister, there was no evidence the Tribunal was aware of the statements or was influenced by it. In circumstances where the appellant had merely asserted bias without putting before the Court cogent evidence capable of distinctly and clearly proving bias, the primary judge held the allegation of bias was not made out. 40 Finally, the primary judge held that the additional ground raised in the appellant's July 2015 submissions must fail because the Tribunal did consider the appellant's case under the complementary protection provisions, and did so in "not insignificant" detail. His Honour noted that the Tribunal applied the relevant test; had regard to the appellant's various claims; and examined the relevant country information: see [65]-[66] of the primary judge's reasons. In the circumstances, the primary judge found the additional ground must therefore fail. 41 As a result, the Court concluded that none of the appellant's grounds for judicial review were made out, and that the Tribunal decision did not involve jurisdictional error. 42 The appellant now appeals from the primary judge's decision.

Appeal to this court 43 In his notice of appeal filed 1 February 2016, the appellant raises three grounds of appeal: 1. The Tribunal made a jurisdictional error by failing to consider the application on the evidence and arguments which were relevant. 2. The Tribunal failed to consider the applicants claim for protection under the Refugees Convention and the Complementary Provisions of the Migration Act 1958 (S36) ( 2A.) . 3. The country information submitted by the applicant was not assessed in a proper manner and was subject to bias.

Appellant's submissions 44 By way of a document filed as an outline of submissions on 5 May 2016, but taking the form of an affidavit, the appellant says the following: 1. I am the Appellant in the case WZATL v Minister for Immigration and Border Protection & Administrative Appeal Tribunal - Federal Court no WAD 44 of2016. 2. The Tribunal and the Primary Judge did not examine in depth the grounds of my appeal namely jurisdictional error, not following proper procedure and not following the rules of natural justice. 3. In this regard reference is made to paragraph 14, 19,28 and 32 of the Tribunal's judgement. It is submitted that these paragraphs reveal the misdirection made by the Tribunal and the primary judge not examining them in depth. 4. Judicial error has been committed by not examining the provisions of the Prevention of Terrorism Act in regard to detention, lack of bail provisions and the inability for the courts of law to intervene. There is blanket impunity for the armed forces in acting under the provisions of this law. 5. The provision of this Act is alone consistent of serious harm that I fear under section 912 of the Migration Act. 6. I am a Tamil Hindu by ethnicity but by social group belongs to the fishing caste who were associated with the Tamil revolt and the LTIE. 7. My family move to fish in the Eastern Province of Sri Lanka during the Monsoon season. 8. Due to this reason my family and those living in my village were suspect of aiding the Tamil revolt for a separate state. 9. It is for this reason that my village has had an armed camp of the Sri Lankan navy for a long time and this continues to date. 10. I have been harassed as a young Tamil fisherman with a perceived connection with the LTIE that led the Tamil revolt to create a separate state in Sri Lanka for the Tamils. 11. The Minister's direction 56 given under the provisions of section 499 of the Migration Act expects the Tribunal to give weight the report submitted by the Department of Foreign Affairs and Trade. 12. I submit that this direction vitiated the balanced assessment of the real country situation as regards Sri Lanka and its human right abuses which are yet continuing and was in existence when my case was tried before the Tribunal. 13. I have been assessed as not been a credible witness, which I submit had been wrongly arrived at, with no adequate reasons given. 14. I, therefore, submit that I have a well-founded fear of being forcibly deported to Sri Lanka and being persecuted due to my ethnicity and social grouping of belonging the fisher caste. 15. I pray that your Honour declare that I be given a fresh hearing before the Tribunal. 45 At the hearing of the appeal, the appellant was self-represented but assisted by an interpreter. He handed to the Court a further set of written submissions, written in English with some attachments. It became apparent that these had been prepared for him by another person. 46 These submissions drew attention to [12] and [13] of the primary judge's decision. The submission was made that in the Tribunal the appellant's credibility was not properly assessed. 47 Further attention was drawn to [14] of the primary judge's judgment and the submission made that the question of his life and liberty was not properly evaluated, with reference being made to s 91R of the Act. 48 A further submission was made that, in [17] of the primary judge's judgment, there was a statement that the Sri Lankan government was only concerned with Tamils who supported the LTTE, which included close family members. The statement was then made in these submissions that: "If so, the judgment failed to consider that my father was considered a supporter of the LTTE when he was shot and killed by the armed forces". As the materials from the Tribunal and the Court below made no reference to the appellant's father having been shot and killed by the armed forces, the Court raised that particular statement in these submissions with the appellant who, upon the matter being raised, said it must be a mistake because his father died of natural causes. It was agreed that the person who prepared the submissions obviously made a mistake. 49 The balance of the submissions was concerned with the current state of protection for the appellant should he return to Sri Lanka and the fear for harm he has and his concern that the country information relied on by the Tribunal is not presently accurate.

Minister's submissions 50 The Minister submits the three formal grounds of appeal do not allege any appealable error in the primary judge's decision, but merely allege jurisdictional error, amongst other errors, on the part of the Tribunal. For this reason alone, the Minister says the appeal cannot succeed and should be dismissed with costs. 51 If the grounds of appeal were treated as if they alleged appealable error on the part of the primary judge, the Minister submits that, in any event, the grounds cannot succeed. 52 The Minister notes that ground 1 appears to relate to the same ground in the Federal Circuit Court, and the bases for that ground identified by the primary judge in the appellant's affidavit of July 2014, and the appellant's submissions of August 2014 and July 2015. 53 In considering the corresponding ground in the Federal Circuit Court, the Minister says the primary judge identified relevant authority and gave careful consideration to the Tribunal's reasons in assessing and rejecting the appellant's protection claims in light of the errors alleged by the appellant. His Honour then concluded, at [47], that the allegation of jurisdictional error was not made out; a conclusion which the Minister contends is correct. 54 With regard to ground 2, the Minister notes it was not a ground of application in the Federal Circuit Court, but says it essentially encompasses the claims made by the appellant in relation to ground 1 in that Court. Consequently, for the reasons the Minister contends ground 1 in the notice of appeal is not made out, he says ground 2 must also fail. 55 The Minister notes that the claim in ground 3 was also not made in the Federal Circuit Court but that, as noted by the primary judge, the appellant's submissions of August 2014 raised a ground of bias on the basis that: (1) the Tribunal was prejudiced by the policy statements issued by the Minister against asylum seekers who arrive by boat, and by the reports of the Department of Foreign Affairs and Trade; and (2) the "document marked A" indicated the Minister was prejudiced in his attitude to Sri Lankan Tamil asylum seekers and, by his policy statements, influenced the decisions of the Tribunal. 56 The Minister submits that the primary judge's reasons for rejecting the appellant's allegation of bias, at [58]-[61], do not display any appealable error. 57 Further, the Minister says there is no basis for the appellant's claim in ground 3. 58 For those reasons, the Minister submits the appeal should be dismissed with costs.

Consideration 59 For the substantive reasons advanced on behalf of the Minister, the appeal should be dismissed. 60 For the reasons given by the primary judge the Tribunal is not shown to have made any jurisdictional error and the judge did not err in so finding. 61 The Tribunal, as the judge stated, considered all relevant material before it and considered whether Australia owed protection obligations to the appellant under s 36(2)(a) or complementary protection obligations under s 36(2)(aa) of the Act. The judge did not err in so finding. 62 Further, the Tribunal, as the judge found, cannot be shown to have made a decision tainted by bias, actual or constructive. The judge cannot be said to have erred in so finding. Natural justice was afforded in the hearing process in the Tribunal, as the judge correctly found. 63 The question of detention of the appellant on return to Sri Lanka was fully considered by the judge and his reasons do not reveal any error. 64 Other question now raised by the appellant in para 6 to 15 of the appellant's affidavit go to the merits of the Tribunal's earlier decision, and are matters not falling within the function of the Court on this appeal - which is to correct any errors of law made by the primary judge. As no such errors are revealed, the appeal must be dismissed. 65 So far as the particular submissions made in [3] of [44] above are concerned, the paragraphs referred to by the appellant simply record the claims made by or on behalf of the appellant before the delegate and the Tribunal. They do not reveal any misdirection either by the Tribunal or the primary judge, as submitted. Rather the point of the submission would appear to be that the Tribunal erred as a matter of fact. That is not an issue indicating any jurisdictional error. 66 As to the matter raised in [4] of those same submissions recorded at [44] above, the primary judge dealt with those issues at [43]-[46] of his judgment. No error by the primary judge is indicated by his analysis of the law and no jurisdictional error by the Tribunal is indicated. 67 While the appellant in oral submissions and in the further written submissions handed up at the hearing of the appeal considers that other country information suggests that it would not be safe for him to return to Sri Lanka at this time, the Court cannot have regard to that additional material. The primary judge further made the point that the Tribunal in fact considered a range of country information before coming to its decision on the merits. The primary judge did not err in making the findings that he did. No jurisdictional error by the Tribunal is indicated. 68 In the result, there is no basis upon which it can be said that the primary judge erred in dismissing the judicial review application from the Tribunal, and there is no basis upon which to conclude similarly that the Tribunal committed any jurisdictional error. 69 For those reasons, the appeal must be dismissed.

Orders 70 The following orders are appropriate: (1) The appeal be dismissed. (2) The appellant pay the costs of the first respondent, to be taxed if not agreed. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.