FEDERAL COURT OF AUSTRALIA VAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1201 MIGRATION – visa – protection visa – whether Tribunal ignored an integer of appellant's claim – whether appellant made claim that he was forced to live in hiding – whether remaining in hiding in own home to avoid security situation in streets amounted to persecution – whether appellant made sur place claim other than one based on applying for protection visa APPEAL – grounds – whether leave should be granted to rely on grounds not argued at first instance – whether proposed new grounds had merit Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 36 Convention relating to the Status of Refugees. Opened for signature 28 July 1951 (entered into force 22 April 1954) Protocol relating to the Status of Refugees. Opened for signature 31 January 1967 (entered into force 13 December 1973) VAAG v Minister for Immigration [2004] FMCA 13 cited Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601 cited Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 cited Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (2003) 203 ALR 112 distinguished APPLICANT VAAG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 127 of 2004 GRAY J 1 SEPTEMBER 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 127 of 2004 BETWEEN: APPLICANT VAAG APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAY J DATE OF ORDER: 1 SEPTEMBER 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Leave to rely on the grounds specified in the amended notice of appeal filed on 27 May 2004 be refused. 2. The appeal be dismissed. 3. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 127 of 2004 BETWEEN: APPLICANT VAAG APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: GRAY J DATE: 1 SEPTEMBER 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The question has arisen in this appeal as to whether the appellant ought to be granted leave to rely on grounds of appeal that relate to matters not raised in the court below. 2 The appeal is from the judgment of the Federal Magistrates Court, styled as VAAG v Minister for Immigration [2004] FMCA 13. The learned federal magistrate dismissed an application by the appellant, seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth), in respect of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, 'the Minister') to refuse to grant to the appellant a protection visa by s 36 of the Migration Act 1958 (Cth) ('the Migration Act'). 3 By s 36 of the Migration Act, a criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms 'Refugees Convention' and 'Refugees Protocol' are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. For the purposes of these reasons for judgment, it is convenient to call those two documents, taken together, the 'Convention'. It is sufficient for present purposes to say that Australia has protection obligations under the Convention to a person who: 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country'. 4 The appellant is a citizen of Sri Lanka. He is a Tamil, born in the north of that country, but who lived in Colombo for a number of years. He claimed to be entitled to protection on the ground of his race and of political opinion, perhaps imputed by the authorities, of a connection with a militant Tamil organisation known as the Liberation Tigers of Tamil Eelam ('LTTE'). The Tribunal rejected the claims that the appellant made, finding that it was not satisfied that there was a real chance that the appellant would be persecuted by Sri Lankan authorities for the reasons he described, or for any other Convention reasons, in the reasonably foreseeable future, should he return to Sri Lanka. 5 The amended application that was before the Federal Magistrates Court challenged the Tribunal decision on a number of grounds, raising issues of want of jurisdiction on the part of the Tribunal. In the event, the only ground of significance that appears to have been argued before the federal magistrate was an issue of denial of procedural fairness. The attempt was made to liken the case to that which had been dealt with by the High Court of Australia in Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 190 ALR 601. The federal magistrate rejected that argument. 6 When the appellant first filed his notice of appeal in this Court, he suggested that the federal magistrate had made an error in rejecting the argument based on denial of procedural fairness. Subsequently, pursuant to an order sought and obtained by consent of the parties, the appellant filed an amended notice of appeal. The amended notice of appeal omitted any reference to the procedural fairness argument. The grounds in it are stated as follows: '2. The learned Federal Magistrate erred in not finding jurisdictional error in the decision of the Refugee Review Tribunal ("Tribunal") dated 15 November 2001 in relation to the Appellant. 3. The Tribunal failed to take into account a relevant consideration or consider a component integer of the Appellant's claim, namely, that the Appellant feared persecution due to association with LTTE members. 4. The Tribunal failed to take into account a relevant consideration or consider a component integer of the Appellant's claim, namely, that the Appellant had been living in hiding in Sri Lanka due to his fear of persecution. By failing to consider whether the modified conduct was influenced by the threat of harm, the Tribunal failed to consider the issue properly. 5. The Tribunal failed to take into account a relevant consideration or consider a component integer of the Appellant's claim, namely, that the Appellant made a sur place claim to fear persecution based on his involvement with the Tamil cause once he had left Sri Lanka and come to Australia.' 7 Counsel for the appellant, who was not the counsel who appeared in the Federal Magistrates Court, frankly conceded that the grounds of appeal on which the appellant sought to rely were different from those which had been relied on as grounds of review in the Federal Magistrates Court. Counsel for the appellant invited me to consider factors such as the change of counsel and the weight of the grounds that were now advanced in assessing whether the interests of justice required that leave be granted. She drew attention to the fact that, at the time when the Federal Magistrates Court heard argument in the case, there was still some uncertainty as to the circumstances in which it was permissible to overturn a decision of the Tribunal in the light of amendments to the Migration Act made in October 2001. The hearing before the Federal Magistrates Court was conducted on 4 September 2002, and judgment was not delivered until 20 January 2004. In the meantime, on 4 February 2003, the High Court of Australia delivered its judgment in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476, which brought some clarity into the question of the circumstances in which a decision of a Tribunal under the Migration Act could be overturned, by indicating that the presence of jurisdictional error would enable relief to be granted. 8 In presenting submissions on behalf of the appellant about the strength of the grounds of appeal on which she proposed to rely, counsel for the appellant did not press the ground referred to in par 3 in the amended notice of appeal. She did, however, seek to argue the grounds in pars 4 and 5. The first of those is that the Tribunal ignored an integer of the appellant's claim, which was that he had been living in hiding in Sri Lanka, due to his persecution. To assess the strength of this argument it is necessary to go to some of the material that was before the Tribunal. 9 In a written statement, which the Tribunal had before it, the appellant said that on 2 September 1995 the police had come to his home and had arrested him and detained him in the police station. He was detained for a period of two weeks, and was subjected to interrogation, on and off. He was assaulted, struck with batons, intimidated and threatened with torture. He was not taken to court. After he was released, at the end of the two-week period, he recognised that Colombo was an insecure place for him. He said that there were regular round-ups, arbitrary arrests and mistreatment, and that arrest and detention could result in lengthy detention and torture, simply because he was young and a Tamil from Jaffna, and associated with similar people. He then said this: 'It is this developing insecurity in Colombo and inability to return to Jaffna which compelled my parents to look for avenues to have me out of danger. The detention in September 1995 forced me to stay indoors a great deal of time and to keep an extremely low profile to avoid contact with police and security forces as much as possible. Even if I avoided moving out unnecessarily, there were cordoned searches in the area and the obvious person who came under attention when security forces visited our house, was me. The explanations of previous release did not matter to them and if they decided, they would take me for further questioning. This was a constant fear and worry.' 10 In the course of the hearing before the Tribunal, the Tribunal member questioned the appellant about the matters that he had raised. The appellant referred to his arrest and detention in September 1995, saying that it was quite a terrifying ordeal for him and that, even when he thought about it at the time of the hearing, he was quite jittery because it was a scary situation. He was not even sure if he was going to be returned alive. The Tribunal member then asked: 'So when did you decide to leave the country?' 11 Through an interpreter the appellant answered: 'After the second arrest, I knew that my life was in danger and I needed to leave the country, just need to go somewhere.' 12 The Tribunal member asked: 'So why did you wait three months to get a passport?' 13 The appellant answered: 'I was just so terrified, I was so affected by that incident that I didn't go out and hardly ventured out. I mean, to get a passport I had to take photos and things and I didn't want to do any of those things.' 14 The Tribunal member asked: 'Why did you go to all the trouble to get the Australian Student Visa when you could have got, you could easily have gone into another country [that] didn't have such stringent requirements?' 15 The appellant answered: 'I did…I did try to get…I did try to get to other places too, it didn't matter to me where I just wanted to leave Sri Lanka apart from other countries I also tried Australia and I just happened to get this first.' 16 The Tribunal member then pursued that matter. 17 In its reasons for decision the Tribunal summarised the evidence about the aftermath of the September 1995 detention very briefly. It said: 'After that, he hardly went outdoors and sought a means to escape the country.' 18 In its reasoning and its findings the Tribunal dealt with the matter as follows: 'The Applicant claimed that it was not until September 1995 that he was held for an extended period. Despite some rough treatment, he was released after two weeks and continued to reside in Colombo. The Tribunal accepts that he was detained and interrogated and concludes that he was released because he had satisfied the authorities that he was not connected with the LTTE. That is reflected in his subsequent behaviour. He waited for three months or so to obtain a passport and then waited until he received a visa for Australia before he left the country. In the Tribunal's view, that is not conduct of a person who fears persecution… The inaction of the Sri Lankan authorities while the Applicant was in Sri Lanka also contributes to the conclusion that the Applicant was not of any interest to them when he left Sri Lanka.' 19 It is apparent from an examination of this material that at no time did the appellant make a claim that he had been compelled to live in hiding by reason of the conduct of the Sri Lankan authorities with respect to him. After his release from his September 1995 detention he returned to his parents' home. On his own account of the period, he did not remain indoors for the entirety of the time. In his original statement, he said that he was forced to stay indoors a great deal of time. In his evidence at the hearing he said that he hardly ventured out. In the circumstances, the Tribunal could hardly be blamed for failing to treat this as a claim that the appellant had been compelled to live in hiding. In particular, it might have been thought that, if the authorities had been seeking to apprehend the appellant after releasing him in September 1995, his home was the very first place at which they would have looked for him. It was clear on his evidence that the appellant's reluctance to go out from his parents' home at that time had to do with the security situation in Colombo and the likelihood of being caught up in round-ups and arbitrary arrests in the street. 20 Counsel for the appellant sought to rely upon some passages from the judgment of the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (2003) 203 ALR 112. In particular, counsel for the appellant sought to rely on the passages at [43] and [80], which I need not read, to support an argument that, because the appellant had had to modify his conduct in Sri Lanka to avoid persecution, the Tribunal should have dealt with this issue, in order to determine whether he had a well-founded fear of persecution. In my view, the argument involves a misunderstanding of what the High Court was saying in S395. In that case, the Tribunal had found that the relevant parties were homosexuals from Bangladesh and had accepted that homosexuals were liable to persecution in Bangladesh. It had indicated to the parties concerned that they could avoid such persecution by modifying their conduct when they returned home so that it would not become known that they were homosexual. The High Court regarded that as an impermissible course for the Tribunal to take. 21 It is apparent that, if the only way in which a person can avoid persecution for a Convention reason is by keeping secret the element about them which will lead to their persecution if it should become known, then their fear of persecution may well be well-founded. That is not the case that the appellant put in the present case. His case was not that he had to go where no-one could trace him, but that the security situation in Colombo at that time made it more difficult for him to venture out on the street. In my view, ground 4 of the appellant's amended notice of appeal does not have sufficient strength to warrant leave being granted to the appellant to raise it. It is an argument that is bound to fail. 22 I turn then to the suggestion that the appellant had raised a sur place claim, with which the Tribunal had failed to deal. Again, it is necessary to go to some of the material before the Tribunal to ascertain the substance of the argument. In his written statement that was before the Tribunal, the appellant said this: 'In Australia also I met some of my schoolmates, particularly from Hartley College in Jaffna. I also maintained my contacts with some of the old friends from Colombo. Inevitably, discussions in Australia and contacts with friends in Colombo centred around the situation of the Tamils and what could be done to assist to [sic] the Tamil population. Two friends of mine in Colombo, [X] and [Y], were very enthusiastic about assistance that I could provide to the Tamils. They asked for support in cash, collecting food, medicine and clothing and supplies and forwarding these through non-governmental organisations and like. Many Tamils in Australia, including Old Boys associations of Jaffna schools, collected money to assist the Tamils. I did what I could to assist and liaise with [X] and [Y] about what is being done and what could be done. I subsequently learned that [X] and [Y] were taken into custody as suspected LTTE fighters in March 1998. To this day, I do not know the level of their involvement with LTTE movement. It could be they had more serious involvement than I learnt, or the police had implicated them. The police appear to have taken lists of names with whom they had contact overseas and I am afraid they have known about me as a person who had provided them assistance while in Colombo and after arriving in Australia. Further to the detention of [X] and [Y], the security forces investigating LTTE activities in the city had gone to my house and has [sic] questioned my mother about my background and my whereabouts.' 23 The appellant went on to say that his mother and sisters had been taken to the police station for interrogation, but had been released through the intervention of a lawyer who had previously assisted the appellant. 24 In the hearing before the Tribunal, the Tribunal member also discussed this question with the appellant. In the course of his evidence, the appellant appears to have volunteered the following: 'What I found out was in 98, two of the boys that I had helped were arrested and taken away and they have given information about me saying that I had helped them in every possible way, that they wanted help and following this, following all the information that they had given about me, the authorities went to my house and harassed my mother and my sisters.' 25 The Tribunal member then asked: 'These two boys that you say were detained and informed in 1998, have you been asked about them previously?' 26 The interpreter asked for the question to be repeated. The Tribunal member said: 'Two of your former friends that you helped before you left in 1996 were detained in 1998?' 27 The appellant answered: 'Yes'. 28 The Tribunal member asked: 'When you say you were detained in 1995, had you been asked about these two boys?' 29 The appellant answered: 'Yes they did.' 30 The Tribunal member then asked how the appellant had known that the boys had informed on him, and the appellant repeated the information about the visit to his mother. 31 In its reasons for decision, the Tribunal summarised the appellant's evidence about this issue as follows: 'After his arrival in Australia later that month, he met some former school colleagues who informed him that two other school friends in Colombo were collecting materials to help Tamils in Sri Lanka. The Applicant did what he could do to assist, only to discover in March 1998 that his friends in Colombo had been detained as suspected LTTE members. Subsequently, he heard that police had visited his parents at home to ask about the Applicant's whereabouts and background. He states his mother and sisters were taken to the police station and threatened, but were released after intervention by the lawyer who had previously helped the Applicant. That lawyer advised that it is inevitable that the Applicant will be questioned by the authorities on return and they will want to know about his relationship with the former school friends suspected of being in the LTTE.' 32 In its findings the Tribunal dealt with the matter as follows: 'The Applicant claims there have been further developments since he left Sri Lanka that make it more likely he faces persecution if he returns. He says he has been informed that the two men he was questioned about in 1995 had been detained as LTTE suspects in 1998 and that police had visited his family and stated that they wanted to question him. Given that he had been cleared three years earlier and had passed through security checking in 1996 when he left Australia, it is odd that police would want to question him in 1998. Even if they do, the Tribunal is satisfied that it is a legitimate activity of authorities to investigate the activities of the LTTE. He has been questioned on many occasions before and only once was he mistreated. Then he was cleared of suspicion and released after his father and a solicitor intervened. In the current circumstances, he has forewarning and there appears to be no reason why he could not be accompanied to his interview by his father and solicitor. He has not been involved in LTTE activities, he was cleared of LTTE connections related to the same two friends on a previous occasion and he has been out of the country for several years. Further, his father, who is head of the household has not been harmed in relation to hosting suspected Tamil Tigers and not [sic] have other members of the family who were there when the men visited. Considering the circumstances, the Tribunal is satisfied that there is no more than a remote chance that the Applicant will encounter harm that is sufficiently serious to amount to persecution.' 33 The Tribunal later in its reasons for decision expressed the following finding: 'The Tribunal is satisfied that the Applicant does not face a real chance of persecution because of links with the men who were arrested in 1998.' 34 The Tribunal later turned to deal with the question of what would happen when the appellant returned to Sri Lanka. It said: 'The Applicant claims that he will be questioned when he returns and imputed with dissident political opinions and harassed because he has applied for refugee status. He has no history of dissidence in Sri Lanka and legitimately came to Australia to study. His protection visa application is confidential, he has a passport and he is in a position to voluntarily return. Even if the Applicant was to be questioned on return to Sri Lanka, the Tribunal is not aware of any evidence that returnees are harmed because they have sought asylum, although it is aware that many asylum-seekers are "forcibly" returned and some are questioned about illegal departures and people-smuggling. The Applicant, however, left legally, for the legitimate purpose of enhancing his education in Australia.' 35 It is apparent that the Tribunal did not ignore the appellant's claim about what might happen to him because of his contact with his two friends in Colombo who were said to have been arrested and interrogated in 1998. It dealt with the claim to a considerable extent in its reasons in the passage I have set out. 36 It is true that the Tribunal did not make a specific finding about whether and to what extent the appellant had provided help for Tamils from Australia. It did not do so because the appellant had provided it with no evidence that would have enabled it to make such a finding. All that he said in his original statement was, 'I did what I could to assist and liaise with [X] and [Y] about what is being done and what could be done.' There appears to have been no material evidencing the sending of money, the making of donations to non-government organisations, the purchasing of goods, food, medicine, clothing or other supplies and the forwarding of them. It cannot be said that the appellant made before the Tribunal, in any meaningful sense, a sur place claim based on those activities in Australia. 37 To the extent to which he did make a sur place claim, it was based on the fact that he had sought asylum in Australia and the Tribunal dealt with it. The Tribunal was not obliged to refer to every particular item of evidence about each matter that the appellant placed before it. 38 It should also be mentioned that the appellant had the assistance of a migration agent at the time when the Tribunal hearing was conducted. If he had a distinct sur place claim, based on his activities in Australia, other than in seeking a protection visa, it is hardly to be supposed that he would have failed to place it squarely before the Tribunal. 39 I am satisfied that the submission relating to ground 5 in the amended notice of appeal has no sufficient strength to warrant leave being granted to allow it to be argued. 40 As the appellant has not sought to put any argument that the federal magistrate fell into error in dealing with the procedural fairness ground, and the appellant has failed to show a case for the grant of leave to rely on the grounds stated in the amended notice of appeal, it follows that leave to rely on those grounds should be refused and that the appeal should be dismissed. 41 The orders I make are as follows: 1. Leave to rely on the grounds specified in the amended notice of appeal filed on 27 May 2004 be refused. 2. The appeal be dismissed. 3. The appellant pay the respondent's costs of the appeal. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 15 September 2004 Counsel for the Appellant: G Costello Solicitor for the Appellant: Ravi James Counsel for the Respondent: C Fairfield Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 1 September 2004 Date of Judgment: 1 September 2004