FEDERAL COURT OF AUSTRALIA AJV15 v Minister for Immigration and Border Protection [2016] FCA 1210 Appeal from: AJV15 v Minister for Immigration & Anor [2016] FCCA 505 File number: NSD 462 of 2016 Judge: BURLEY J Date of judgment: 12 October 2016 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the then Refugee Review Tribunal – Tribunal affirmed decision not to grant the appellant a Protection (Class XA) visa – whether Refugee Review Tribunal failed to put an issue to the appellant or invite him to make submissions in accordance with the Migration Act 1958 (Cth) s 425 – whether Refugee Review Tribunal failed to consider appellant's claims or failed to ask itself a relevant question ADMINISTRATIVE LAW – role of the Court to decide whether decision was invalid by reason of jurisdictional error – role of the Court not to consider factual merits of Refugee Review Tribunal's decision Legislation: Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth) ss 36, 425 Cases cited: AJV15 v Minister for Immigration & Anor [2016] FCCA 505 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Date of hearing: 11 August and 23 September 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 50 Counsel for the Appellant: Mr A Kumar Solicitor for the Appellant: Westside Legal Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS NSD 462 of 2016 BETWEEN: AJV15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BURLEY J DATE OF ORDER: 12 OCTOBER 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 BACKGROUND [7] 2.1 The Visa application and the decision of the Delegate [7] 2.2 The Tribunal's decision [8] 2.3 The decision of the FCCA [22] 3 CONSIDERATION [29] 3.1 Ground 1: Failure to comply with section 425 of the Act [32] 3.2 Ground 2: Failure to consider a claim of on-going persecution [44] 3.3 Ground 3: Failure to consider Sri Lankan state protection [47] 4 DISPOSITION AND COSTS [50] BURLEY J: 1. INTRODUCTION 1 This appeal is from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) on 15 March 2016, dismissing the appellant's application for judicial review of the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) given on 11 March 2015. The Tribunal had affirmed a decision of a delegate of the first respondent (Delegate) not to grant a Protection (Class XA) Visa (Visa) under section 36 of the Migration Act 1958 (Cth) (the Act). 2 The appellant, who was represented by Counsel, contends that the Court below erred in failing to find that the Tribunal's decision was affected by jurisdictional error in that the Tribunal: (1) failed to comply with the mandatory requirements in section 425(1) of the Act (Ground 1); (2) failed to consider a claim made by the appellant that he had a well-founded fear of being persecuted and erred in failing to find that one-off incidents could give rise to a well-founded fear of persecution (Ground 2); and (3) failed to consider a claim made by the appellant by failing correctly to consider whether the Sri Lankan authorities afforded protection against discrimination to wealthy Tamils (Ground 3). 3 These asserted errors, insofar as they relate to the Tribunal's decision, are essentially the same as those rejected by the primary judge in the FCCA's decision. 4 The first respondent (Minister) filed an outline of submissions on 4 August 2016, which set out the background to the appeal and the reasons why the Minister submitted that the appeal should be dismissed. 5 Counsel for the appellant filed written submissions on 12 September 2016 which also set out some background to the appeal, as well as the appellant's claims and grounds of appeal. 6 For the reasons that follow no error has been demonstrated in the decision of the FCCA and the appeal is dismissed. 2. BACKGROUND 2.1 The Visa application and the decision of the Delegate 7 The appellant is a citizen of Sri Lanka who left that country on a legitimate visa on 23 February 2010 and travelled to Malaysia where he worked for two years. On 9 June 2012 he arrived in Australia as an undocumented Irregular Maritime Arrival on Christmas Island. He lodged an application for the Visa on 26 November 2012. On 29 July 2013, the Minister wrote to the appellant notifying him of its decision. 2.2 The Tribunal's decision 8 On 5 August 2013, the appellant applied for a merits review of the Minister's decision by the Tribunal. At the first Tribunal hearing on 12 December 2014, the migration agent representing the appellant lodged over 150 pages of submissions and other materials. The hearing was adjourned to a later date, which afforded the agent time to translate some of the documents. The hearing resumed on 4 March 2015, when further submissions and documents were lodged. On each occasion, the hearing was conducted with the assistance of a Tamil/English interpreter, and the appellant was represented by a migration agent. 9 On 11 March 2015 the Tribunal affirmed the Delegate's decision. 10 The appellant's claims were made in his Visa application, in an amended statement that he relied upon before the Tribunal and in his oral evidence given before the Tribunal. They may briefly be summarised as follows: (1) In Sri Lanka in 2006 one of his sisters had been forced to join the Tamil militia, the Liberation Tigers of Tamil Eelam (LTTE) and in April 2008 she was killed. Her death was publicised on the LTTE radio channel, and the appellant's father's name was publicly announced. The LTTE returned his sister's body to his family home and gave her a funeral. (2) Subsequently, the appellant was forced to assist the LTTE in making bunkers, taking part in certain religious celebrations and putting up posters. (3) In 2008 the appellant was detained and interrogated by the Sri Lankan authorities on several occasions on suspicion of LTTE involvement. (4) In July or August 2009, the appellant was visited by a member of a para-military group (the Eelam People's Democratic Party (EPDP)) working with the Sri Lankan government, who said that he had information about the appellant's and his sister's involvement with the LTTE, and threatened that if he did not pay money to him there would be "problems". (5) The appellant claimed to have a well-founded fear of persecution by reason of; perceived association with the LTTE, his ethnicity as a Tamil, his actual or imputed political opinion due to his ethnicity, his membership of a relatively wealthy Tamil family, for being a part of the Tamil Diaspora and for being a failed asylum-seeker. 11 The Tribunal assessed the appellant's claims for protection and rejected them primarily on the ground that it did not accept that critical aspects of his evidence should be believed. The Tribunal's relevant findings may be summarised as follows. 12 First, the Tribunal accepted that the appellant's older sister was forcibly recruited by the LTTE in 2006 and that she was killed by shelling in Muhamalai on 26 April 2008. 13 Secondly, the Tribunal accepted that after the death of his sister, the appellant's father's name was mentioned on an LTTE radio programme, that the sister was given a military funeral, that the family were given some reward (compensation) after her death and that the appellant's family were known (at least by local persons) to have lost a child in fighting during the ceasefire in April 2008. 14 Thirdly, the Tribunal implicitly accepted that the appellant had during 2008 been forced to assist the LTTE by; participating in defence training, building bunkers, digging trenches, participating in a National Heroes' celebration, putting up posters and assisting in some religious festivals. 15 Fourthly, the Tribunal accepted that the appellant was questioned in 2008 by the Sri Lankan army and on occasions in a Sri Lankan army camp. It did not accept that the appellant had been seriously mistreated, given that he had very quickly been released and never claimed to have required medical attention. 16 Fifthly, the Tribunal was not satisfied that the appellant was, prior to his departure from Sri Lanka, seriously suspected of LTTE involvement. It accepted that in 2008 the appellant had been questioned by the Sri Lankan army, but as noted above, did not accept that he had been seriously mistreated, given that he was very quickly released and never claimed to have required medical attention. It concluded that the appellant had not been detained or harassed after the 2008 incidents and that he was not detained after the cessation of hostilities. It found that he was not displaced by the fighting and he was able to depart Sri Lanka legally in 2010. 17 Sixthly, whilst the Tribunal accepted that the appellant's sister had been known to have perished in fighting for the LTTE, and that the appellant's father's name had been announced on radio prior to the cessation of hostilities, the Tribunal considered that if the appellant was truly in danger of harassment upon his return to Sri Lanka, his family would have been harmed, harassed or questioned in Sri Lanka. However, in evidence before the Tribunal the appellant had stated that in his regular telephone conversations with his family immediately prior to the hearing, the only issues discussed during that contact were trivial and could be described as "normal talk". 18 Seventhly, the Tribunal accepted that in July or August 2009 the appellant had been the subject of extortion by a member of the EPDP, but rejected that the threat made by the EPDP extortioner was that he would tell the Sri Lankan army that the appellant and the appellant's sister had co-operated with the LTTE. The Tribunal regarded this as implausible given that it was likely that the Sri Lankan army already knew of their LTTE association. 19 In this context, the Tribunal found that whilst it is plausible that the appellant was subject to an extortion attempt in mid-2009, given that the appellant remained living and working in the same town for six or seven months after this incident, it was satisfied that the extortion attempt was resolved by the appellant, with the assistance of his employer, and was finally resolved prior to his departure from Sri Lanka. 20 In addition, the Tribunal noted (at [47]) that the appellant had two home regions in Sri Lanka, the first being his family home and the second being the home where he resided and worked for some years. The Tribunal found that if the harassment were to continue after the extortion attempt in mid-2009, he could seek refuge in his family home. 21 Finally, the Tribunal rejected the appellant's submission that his family's relative wealth would mean that there was a real chance that its members would be targeted or harmed. It found that it was not satisfied that wealthy Tamils have a real chance of being targeted in the north of Sri Lanka, which was the appellant's home region. 2.3 The decision of the FCCA 22 The appellant was represented by counsel before the FCCA and relied on essentially the same grounds as are the subject of the present appeal. 23 The primary judge dismissed the application for judicial review challenging the Tribunal's decision. 24 With respect to Ground 1 (subsection 425(1) failure to afford natural justice), the primary judge noted that the Tribunal's role was to review the decision of the Delegate. The Delegate had rejected the appellant's claims, inter alia, because, the Delegate found the appellant's family had lived in its village without any incident and that none of his family had been interrogated or detained by the authorities. Accordingly, squarely in issue before the Tribunal, was the degree of on-going harm suffered by the family. 25 Further, the primary judge noted at [15] that the issue of the appellant's family's continued harassment was raised by the Tribunal in its questioning of the appellant as follows: You haven't claimed that your family has had any problems in [name of town]. 26 The appellant's answer to this observation was to raise a new claim, saying that his family had been rounded up by the authorities in 2014 (the Tribunal at [39] of its decision then rejected that claim as recent invention and as false). 27 With respect to Ground 2 (failure to consider a claim of on-going persecution), the primary judge found at [19] – [20] that the claim had been adequately considered. 28 With respect to Ground 3 (failure to consider the absence of Sri Lankan state protection), the primary judge considered at [22] that because the possibility of harm had been considered and rejected by the Tribunal, it was not required to consider whether the authorities would refuse to afford protection from that harm to the appellant, or any reasons for that refusal. 3. CONSIDERATION 29 Before this Court the appellant raises the following three grounds of appeal (incorporating particulars given by reference to particulars in the FCCA application for review): GROUND 1 1. The learned trial judge dismissed the application on the basis there was no breach of s 425 of the Migration Act: AJV15 v MIBP & Anor [2015] FCCA 2339 at [10] – [16]. Particulars (a) At the commencement of the hearing on 4 March 2015, the Tribunal asked the applicant when he last spoke to his family in Sri Lanka and "what do you talk about with your family?" to which the applicant responded (through a Tamil interpreter): "Just finding out how they are, and how their health is, just normal talk". The Tribunal, in its Statement of Decision and Reasons, accepted that the applicant's older sister had been recruited by and killed fighting for the LTTE but that this would not put him at risk of adverse attention from the Sri Lankan authorities because: "if that may cause problems for the applicant on return, his family… would most likely have been harmed, harassed or questioned in Sri Lanka. However… the only issues discussed during weekly contact the applicant has with his family in Sri Lanka was 'normal talk'." The Tribunal did not: a. invite the applicant to make submissions on whether members of his family had been harmed, harassed or questioned in Sri Lanka; or b. further or in the alternative, put to the applicant that it found it implausible that the applicant's family would discuss "normal talk" in their weekly communication with the applicant if they had in the past been harmed, harassed or questioned in Sri Lanka. (b) His Honour should have found that the Tribunal did not put [to] the Appellant that it would have doubts about the claims (at [10] – [16], in particular at [15]). GROUND 2 2. His Honour erred in relation of [to] claims and should have found that there was constructive failure to consider a claim and the Tribunal misapprehended the test as to the claim AJV15 v MIBP & Anor [2015] FCCA 2339 at [18] – [20]. Particulars (a) The Tribunal held that it was plausible the applicant had been subjected to extortion by the Eelam People's Democratic Party ("EPDP") and that a man claiming to be from the EPDP subjected him to an extortion attempt in Vavuniya in mid-2009. However the Tribunal reasoned that the applicant could relocate to Mannar to avoid extortion in Vavuniya and, in any event, it was satisfied "the extortion attempt was resolved". (b) His Honour erred and should have found that the Tribunal erred in that one-off incidents could give rise to well-founded fear. GROUND 3 3. His Honour erred regarding state protection: AJV15 v MIBP & Anor [2015] FCCA 2339 at [21] – [23]. The decision of the Tribunal involved jurisdictional error insofar as the Tribunal failed to consider state protection. Particulars The Tribunal held that "the Refugees Convention nexus requires persons to be harmed for something perceived about them" and it was not satisfied that wealthy Tamil's have a real chance of being "targeted for this reason on return". The Tribunal ought to have asked itself whether wealthy Sri Lankans generally could be subjected to extortion, protection from which the Sri Lankan authorities discriminately abstained from providing to Tamils. 30 The proceedings were first listed for hearing on 11 August 2016. On that day the appellant sought an adjournment on the basis that he had only recently obtained the assistance of a solicitor and counsel. I granted a short adjournment until 23 September 2016. 31 I would emphasise at the outset that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the Visa or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal's decision to refuse to grant the Visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal's decision to refuse to grant the appellant a visa is lawful under the Act, including whether it is procedurally fair, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under section 24 of the Federal Court of Australia Act 1976 (Cth). 3.1 Ground 1: Failure to comply with section 425 of the Act 32 This ground centres upon the premise that the Tribunal did not invite submissions from the appellant on whether members of his family had been harassed, or put to the appellant that it was implausible that they had been harassed if the weekly communications with his family from Australia were confined to discussing "normal" matters (and not the subject of persecution or harassment). 33 The learned primary judge found at [15] that the premise of Ground 1 was incorrect. The primary judge noted that during the hearing before the Tribunal, the Tribunal raised the issue of harassment of the appellant's family as follows: … I note that you lived in a SLA [Sri Lankan army] area for many years without real problem; You haven't claimed that your family has had any problems in [name of town]; and you have done nothing in Australia that may bring you to the adverse attention of the authorities on return, and we just talked about legal departure… 34 Subsection 425(1) of the Act provides: The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 35 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) approved the following statement by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 (SZBEL at [32]): It is a fundamental principal that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. 36 In SZBEL the Court noted that the issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified (citations omitted): 34. … having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's Delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. 35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal… the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review"… unless some other additional issues are identified by the Tribunal (as they may be)… 37 The obligation is accordingly met when the decision-maker identifies the relevant issue or if the issue has arisen before the Delegate. 38 On appeal, counsel for the appellant contended that the Tribunal had erred in failing to invite the appellant to make submissions on whether his family had been harassed in Sri Lanka. Counsel submitted that this amounted to a failure within section 425 of the Act because the Tribunal had found that it was unlikely that the Appellant would suffer harm on his return on the basis that his discussions with his family disclosed only normal talk, and not concerns about persecution. 39 However, this submission does not in my view correctly characterise the issues before the Tribunal or the basis for its conclusions. 40 The relevant claim made by the appellant was that he would be the subject of persecution or harassment by virtue of his perceived association with the LTTE and his sister. The Tribunal rejected that claim on the basis that it did not accept that he was seriously suspected of LTTE involvement by the authorities (see [16] above). The Tribunal buttressed its finding by observing that if the appellant was indeed pursued by the authorities on the basis that he alleged, then one would expect his family also to be persecuted. It was to this collateral issue that the finding of "normal" conversation was made. For this reason the criticism of the reasons of the Tribunal is unfounded. 41 However, the ground of appeal fails for a second reason, which is that as a matter of fact the issue as characterised by the appellant was put to him. The learned primary judge observed that one of the reasons that the Delegate had rejected the appellant's claim was that the appellant's family continue to reside in his native village without incident and that none of his family has been interrogated or detained by the authorities (at [13], [14]). 42 Further, as noted in [33] above, the primary judge referred to the transcript of the hearing before the Tribunal where the issue of family harassment was also raised. 43 Accordingly, in my view, the primary judge's decision was correct. I reject Ground 1 of the appeal. 3.2 Ground 2: Failure to consider a claim of on-going persecution 44 Ground 2 asserts a failure on the part of the Tribunal to consider whether extortion by the EPDP would occur in the future, either in the appellant's home village or in his family's home village. In his submissions, counsel for the appellant contended first, that the Tribunal failed to address whether the appellant could return to Sri Lanka after a long period of absence and, secondly, that the Tribunal should have considered that the appellant's claim of exposure to extortion would not be answered by a finding that the appellant could move to another location to avoid it. This was because, counsel contended, the EPDP operated nationwide in Sri Lanka. 45 The learned primary judge considered these contentions and observed that the Tribunal had made the following conclusions. First, that the appellant had been living and working in his home town for six or seven months after the extortion incident that he described. Secondly, it had expressed satisfaction that the extortion attempt was resolved by the appellant with the assistance of his employer and that the matter was finally resolved prior to the appellant departing Sri Lanka. Thirdly, that the appellant's claims that the threat behind the extortion, being to expose that the appellant's sister was a member of the LTTE, was false. This was because, as noted in [18] above, this threat was implausible. Fourthly, the Tribunal rejected the appellant's contention that after paying the amount due, the appellant was frequently the subject of further harassment. 46 The learned primary judge's observations in relation to the findings of the Tribunal were, with respect, correct. They establish that the Tribunal did consider whether extortion by the EPDP would occur in the future and concluded that they would not. As a result, the premise underlying the second ground of appeal (that there was a prospect of future extortion by the EPDP of the appellant) is not made out. Accordingly, I dismiss Ground 2 of the appeal. 3.3 Ground 3: Failure to consider Sri Lankan state protection 47 The particulars to Ground 3 assert that the Tribunal ought to have asked itself whether wealthy Sri Lankans generally could be subjected to extortion, protection from which the Sri Lankan authorities discriminately abstained from providing to Tamils. 48 The learned primary judge found at [22] that the contention arose from a misreading of the Tribunal's reasons, in particular at [54]. In that paragraph the Tribunal found, inter alia; I am not satisfied that wealthy Tamil's [sic] have a real chance of being targeted in the north of Sri Lanka (the applicant's home region). 49 Accordingly, the Tribunal found that being targeted, which was the prerequisite to any Convention-basis risk (here, a danger of being the subject of extortion) was not made out. I agree with that conclusion and dismiss Ground 3 of the appeal. 4. DISPOSITION AND COSTS 50 As a result of the foregoing reasons I find that: 1. The appeal should be dismissed; and 2. The appellant should pay the costs of the appeal. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate: Dated: 12 October 2016