FEDERAL COURT OF AUSTRALIA CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 Appeal from: CLI15 v Minister for Immigration & Anor [2016] FCCA 650 File number: NSD 499 of 2016 Judge: BURLEY J Date of judgment: 14 October 2016 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – Tribunal affirmed decision not to grant the appellant a Protection (Class XA) visa – whether the Administrative Appeals Tribunal failed to comply with ss 424A and 424AA of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal failed to consider fully the complementary protection obligations owed to the appellant 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 Tribunal's decision Legislation: Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth) ss 36, 424A and 424AA Cases cited: CLI15 v Minister for Immigration & Anor [2016] FCCA 650 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 Date of hearing: 12 August 2016 Date of last submissions: 17 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 49 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms P M Blackadder of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS NSD 499 of 2016 BETWEEN: CLI15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BURLEY J DATE OF ORDER: 14 OCTOBER 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed with 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 [8] 2.1 The Visa application and the Delegate's decision [8] 2.2 The Tribunal [9] 2.3 The FCCA [17] 3 THE APPEAL [20] 4 CONCLUSIONS AND DISPOSITION [48] BURLEY J: 1. INTRODUCTION 1 This is an appeal from the judgment and orders of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (Delegate) not to grant the appellant a Protection (Class XA) Visa (Visa) under section 36 of the Migration Act 1958 (Cth) (the Act). 2 Broadly speaking, the appellant's case before the Tribunal was that he was entitled to the Visa because he has a well-founded fear of being persecuted if he is returned to Sri Lanka, within subsections 36(2)(a) and (aa) of the Act. This fear is based on claims made by the appellant to the effect that he is a Tamil; that he fears being killed by his brother-in-law (R), because R has been pursuing him for unpaid money since 2002 and has threatened to kill him on at least 20 separate occasions since then; that, upon his return to Sri Lanka, the authorities will not give him protection because of the prejudice they have against members of the "poor working class" and Tamils; because of the influence R has with the police as a wealthy man in the appellant's home district; and because the appellant would be persecuted as a failed asylum seeker upon his return. 3 The Tribunal rejected the appellant's claims, primarily on credit grounds. In particular, the Tribunal rejected the appellant's claims that he was a Tamil, that his brother-in-law was pursuing him for the debt and that he would be persecuted as a failed asylum seeker. The FCCA rejected his appeal; CLI15 v Minister for Immigration & Anor [2016] FCCA 650. 4 The appellant is unrepresented before this Court. He contends that the Court below erred in failing to find that the Tribunal's decision was affected by jurisdictional error in that: (1) the Tribunal made an error in law by not complying with sections 424A and 424AA of the Act by not raising or putting to him in writing aspects of the adverse decision; and (2) the Court failed to find an error in law in the Tribunal's decision. 5 The first respondent (Minister) filed an outline of submissions on 4 August 2016, which provided a summary of the background to the FCCA's decision. During the hearing, the appellant confirmed that he had received a copy of the Minister's submissions and that they had been translated for him. 6 The appellant filed no written submissions and at the hearing did not in oral submissions elaborate on his appeal, except to say that he was concerned that the Tribunal did not tell him at the hearing what its decision would be. 7 For the reasons set out below, I have concluded that the appellant's grounds of appeal have not been made out, and that the appeal should be dismissed with costs. 1. BACKGROUND 1.1 The Visa application and the Delegate's decision 8 The appellant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 13 August 2012. He applied for the Visa on 1 July 2013. On 24 March 2014, the Delegate refused the application. 1.2 The Tribunal 9 The appellant appeared before the Tribunal on two different occasions. A first hearing was conducted on 13 March 2015 during which the appellant gave evidence and presented arguments. The Tribunal member conducting that hearing ceased to be available prior to the delivery of any decision and accordingly, a second hearing was conducted on 15 October 2015 in order to give a fresh hearing to the appellant before a different Tribunal member. The appellant again appeared and was represented by a migration agent and gave evidence. Both Tribunal hearings were conducted with the assistance of an interpreter in the Tamil/English languages. 10 The Tribunal rejected the appellant's claims and affirmed the Delegate's decision not to grant the appellant a protection visa. The Tribunal's analysis proceeded in three substantive parts. 11 The first was to consider the appellant's claim that he was a Tamil. The Tribunal recorded in its decision that at the first and second hearings the appellant was questioned about his ethnicity. The Tribunal accepted that the appellant speaks Tamil but noted that at the first hearing before the Tribunal he said that he spoke Sinhalese equally well. The Tribunal questioned him about his ethnicity and put to him that he was Sinhalese, not Tamil. Ultimately the Tribunal found; that the appellant's parents were Sinhalese; that his father had recorded him to be Sinhalese on his birth certificate; that that he had a Sinhalese name; and that his wife and children are Sinhalese. 12 On the basis of these findings, the Tribunal concluded that the appellant is Sinhalese and not Tamil. 13 The second part concerned the appellant's claim was that he would be killed by R if he returned to his hometown. The basis for his fear was that he had failed to repay R a debt of several million rupees that he had advanced to enable the appellant to start a prawn farming business. The appellant claimed that since 2002 R had threatened to kill the appellant on about 20 occasions. 14 The Tribunal rejected the claim that R threatened to kill the appellant because of debt, or would do so in the future, as incredible, citing numerous reasons why the version of events offered by the appellant was inconsistent or implausible. The Tribunal's decision record identifies multiple occasions on which the Tribunal suggested to the appellant that his version of events was inconsistent or implausible. It rejected his claim that he would be at risk from R if he were returned to Sri Lanka. 15 The third part addressed the appellant's claim that if he was returned to Sri Lanka as a failed asylum seeker who had left Sri Lanka illegally, he would be persecuted or suffer serious harm. The Tribunal recorded that when asked at the first hearing what he thought would happen on his return, the appellant said that he did not think that there would be any problems, but that he would have lost respect because things had not worked out for him in Australia, the appellant would then become depressed, be treated as an outcast and, although he would find work, it would take him to time to recover. 16 Ultimately, the Tribunal did not accept that the appellant would suffer significant harm as a result of returning to Sri Lanka, and the decision record summarises that the Tribunal had explained to the appellant what it considered would in fact happen to him upon his return. 1.3 The FCCA 17 The grounds of appeal relied upon by the appellant before the FCCA were as follows: Ground one The RRT [Refugee Review Tribunal, now the Administrative Appeals Tribunal] erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me. Ground two The RRT made an error in law, with the error being a jurisdictional error, by not complying with section 424A and 424AA. Particulars The Respondent did not raise/or put to me in writing parts of the adverse decision for me to comment in writing. Ground three There is jurisdictional error as the RRT should have invited me for a second hearing to comment orally on the adverse information and without giving me the opportunity to invite me for a hearing involved denial of procedural fairness and legal unreasonableness in my circumstances. 18 A hearing was conducted before a judge of the FCCA on 29 March 2016 who dismissed each of the three grounds of judicial review advanced by the appellant. Only grounds 1 and 2 are relevant to the current appeal. 19 The primary judge relevantly found: 3. … The applicant claimed a fear if he returned to Sri Lanka from his brother-in-law to whom it was said he owed money. The applicant further asserted fear from the Sri Lankan authorities on the basis of his alleged Tamil ethnicity and because he was a failed asylum seeker. 4. The Tribunal accepted that the applicant borrowed money for the purpose of establishing a prawn farm business from his brother-in-law, and further accepted that the prawn farm had failed and that the applicant had made repayments from revenue generated by the business before it failed. However, the Tribunal found other aspects of the applicant's evidence to be inconsistent and found the applicant's claims lacking in credibility. 5. The Tribunal did not accept whether the applicant had ever been threatened by his brother-in-law, or that his brother-in-law would do so in the future. The Tribunal found the applicant's evidence in relation to that fear not to be credible and provided reasons in support of that adverse finding that were open on the material before the Tribunal. 6. The Tribunal did not accept the applicant's claim of being a Tamil for reasons given by the Tribunal that were open on the material before the Tribunal. The Tribunal also made adverse findings in relation to the applicant's claimed fear by reason of being a failed asylum seeker, which adverse findings were open on the material before the Tribunal. … 8. In relation to ground 1, it is apparent from para.5 and para.8 of the Tribunal's reasons that it understood the law to be applied in relation to complementary protection, and it is apparent from paras.71, 72, 73 and 74 that the Tribunal considered the applicant's claim in relation to complementary protection and made adverse findings in that regard. Accordingly, ground 1 fails to make out any jurisdictional error. 9. In relation to ground 2, no information was identified enlivening any obligation within s.424A or s.424AA. The making of adverse findings in relation to the applicant's credibility does not, of itself, give rise to any obligation under s.424A or s.424AA. Those provisions only enliven an obligation upon the Tribunal to give clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that's under review. There was no such information identified in the present case. 10. The applicant was found by the delegate not to be a credible witness, and the Tribunal's reasons support it being apparent that whether the applicant was a Sinhalese was a live issue before the Tribunal. There is nothing in the Tribunal's reasons that supports there being any information of a kind enlivening an obligation under ground 2. Ground 2, accordingly, fails to make out any jurisdictional error. 11. In relation to ground 3, the material in the court book supports the applicant being invited to attend a hearing, consistent with the statutory regime, and I am satisfied that the applicant had a genuine hearing before the Tribunal constituted by the member who conducted the hearing on 15 October 2015. There was no obligation upon the Tribunal in the circumstances of this case to hold any further hearing. The determination of the applicant's application on material before the Tribunal was reasonable on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 3 fails to make out any jurisdictional error. 2. THE APPEAL 20 I should emphasise at the outset that, in the context of this and other appeals, 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 the 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). 21 Ground 1 of the appeal is expressed as follows: 1. The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424A and 424AA. Particulars The Respondent did not raise/or put to me in writing part of parts of the adverse decision for me to comment in writing. 22 This ground is relevantly the same as ground 2 raised before the FCCA. In short, the basis for this ground of appeal appears to be first, that the Tribunal failed to give the appellant information that it considered would be the reason, or part of the reason for affirming the decision of the Delegate and, secondly, that the primary judge fell into error by failing to perceive this error. 23 The appellant did not identify the "information" in respect of which he alleged that the Tribunal had failed to supply particulars. However, as noted above, it is apparent that there were three central bases upon which the Tribunal based its decision. First, the rejection of the appellant's claim that he was a Tamil. Secondly, the rejection of the appellant's claim that his life would be in danger if he returned to Sri Lanka because R would attempt to kill him or have him killed. Thirdly, because he would suffer persecution or serious harm if he returned to Sri Lanka as a failed asylum seeker. 24 As the appellant appeared without the benefit of legal representation, I will take it that his contention is that one or more of these issues identified by the Tribunal as relevant to its decision were not properly raised with him in accordance with sections 424A or 424AA of the Act. 25 Subsection 424A(1)(a) of the Act requires the Tribunal to give an appellant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". In such a case the Tribunal is required to ensure, as far as reasonably practicable, that the appellant understands why it is relevant to the review and the consequences of it being relied on in affirming the decision under review (subsection 424A(1)(b)). The Tribunal is also required to invite the applicant to comment on or respond to the information (subsection 424A(1)(c)). 26 Subsection 424AA(1) is in some respects similar to section 424A, although it applies to an oral hearing. Section 424AA(1) provides as follows: Information and invitation given orally by Tribunal while applicant appearing (1) If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so – the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F). 27 The meaning of the word "information" as applicable in subsection 424A(1) was considered by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (SZBYR) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. The existence of inconsistencies and contradictions in an applicant's evidence and written submissions is not "information" of the kind to which section 424A is directed. The term "information" does not extend to the Tribunal's "subjective appraisals, thought processes or determinations" but is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence; SZBYR at [18]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 (per Finn and Stone JJ). The exclusion of this class of information from the obligation imposed by section 424A is consistent with limits on the procedural fairness hearing rule at common law. 28 Procedural fairness requires a decision maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J; Heydon and Crennan JJ agreeing at [91] and [92] respectively). 29 By reason of subsection 424A(3), information which is commonly referred to as "country information" does not fall within the reach of subsection 424A(1); SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [82]-[83] per Tracey and Foster JJ. 30 In relation to the first basis for the Tribunal's decision, I note that the Tribunal questioned the appellant about his ethnicity during each of the two hearings before it. Plainly, he was on notice that this was in issue. In relation to the second basis, the Tribunal's decision record identifies multiple times in which the Tribunal suggested to the appellant that his concerns that R would attempt to kill him were implausible or inconsistent. Thirdly, the Tribunal decision records the appellant's own evidence that he did not fear persecution upon his return. His concerns about returning were expressed by him to be that he would lose respect because things had not worked out for him in Australia, and he would then become depressed and be treated as an outcast. The issue of persecution was accordingly raised and the subject of evidence from the appellant. 31 In my view the appellant has not made out a case that the Tribunal did not comply with the requirements of sections 424A or 424AA. Nor has he made out a case that the primary judge fell into error by rejecting this ground of appeal. Accordingly, Ground 1 of the appeal should be dismissed. 32 Ground 2 of the appeal is that the primary judge erred "as the Judge failed to find that the Respondent erred in law when the Respondent had reviewed my review application". As noted above, ground 1 before the FCCA was: The [Tribunal] erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me. 33 As the appellant is unrepresented, I have taken it that ground 2 in this appeal is relied upon to the same effect as ground 1 before the Court below (namely, that the Tribunal failed to consider in full the complementary protection obligations), there being otherwise no legitimate basis advanced in this appeal for ground 1 in its present form, which would raise on appeal for the first time a matter not advanced below. At the outset of the hearing I informed the Minister's representative, Ms Blackadder, that I intended to take this course, and she ably made submissions in answer to the substance of the ground, without objecting to its interpretation. 34 The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly: … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 35 A fear of harm is "well-founded" for the purpose of subsection 36(2)(a) of the Act when there is a "real substantial basis for it", even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not "well-founded" if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). 36 Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is: A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; … 37 A person who is not a citizen of Australia is a "non-citizen". 38 Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ). 39 The proper test is whether there is a "real chance" that an applicant will suffer "significant harm" if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]). 40 Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 41 The phrase "significant harm" does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10]. 42 In my opinion, the Tribunal correctly considered the Minister's complementary protection obligations. The legal obligations are briefly identified early in the Tribunal's reasons and (at [71]) the Tribunal later says that it considered the alternative criterion in subsection 36(2)(aa). 43 The Tribunal concluded in relation to that section that, taking his claims singly or cumulatively; it did not accept that the appellant is a Tamil; it did not consider that the appellant would be perceived to have links with the Liberation Tigers of Tamil Eelam; and it did not accept that the appellant was being pursued or threatened with murder by R. 44 The Tribunal found, taking into account the appellant's evidence, the submissions and also country information as to what will happen to him if he returns as a failed asylum seeker who left illegally, that it was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. 45 No additional matter was raised by the appellant at the hearing of this appeal to the matters considered by the Tribunal as being relevant to consideration of his entitlement under subsection 36(2)(aa) of the Act. 46 The learned primary judge considered and rejected this ground on the basis that the Tribunal's reasoning reflected an understanding of the law relevant to complementary protection criteria and considered the appellant's claim in the course of its reasons. 47 I find that there was no error in the approach taken by the Tribunal. It follows that I agree that the primary judge was correct to reject this ground of appeal. Accordingly, I dismiss Ground 2. 3. CONCLUSIONS AND DISPOSITION 48 Both of the grounds of appeal have been rejected for the reasons set out above. 49 The appeal should be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate: Dated: 14 October 2016