FEDERAL COURT OF AUSTRALIA ABZ15 v Minister for Immigration and Border Protection [2018] FCA 1402 Appeal from: ABZ15 v Minister for Immigration & Anor [2018] FCCA 116 File number: NSD 240 of 2018 Judge: RANGIAH J Date of judgment: 7 August 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – refusal to grant Protection Visa – whether Tribunal considered all claims – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a) or (aa) Date of hearing: 7 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr J Pinder of Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS NSD 240 of 2018 BETWEEN: ABZ15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 7 AUGUST 2018 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore and revised) RANGIAH J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 5 February 2018. The Federal Circuit Court dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 13 February 2015 affirming a decision of the first respondent's delegate to refuse the appellant the grant of a Protection Visa. 2 The appellant is a citizen of Sri Lanka. He is of Tamil ethnicity and Catholic religion. In Sri Lanka, he worked as a clerk in the police department for six years. 3 Before the Tribunal, the appellant claimed that in 2002 he had been badly beaten by the police on one occasion. He also claimed that in 2012 he had received two telephone calls from a person speaking Tamil, who asked the appellant if he wanted to "join them or die". These calls prompted him to move out of his house and later leave for Australia. He also claimed that his practice of his religion had been restricted while he was in Sri Lanka. The appellant claimed before the Tribunal to fear harm if he returned to Sri Lanka as a result of these incidents. 4 The appellant withdrew his claim to fear harm as a Catholic, but the Tribunal considered this claim as part of its assessment of the appellant's credibility. The appellant claimed to fear harm from the State or the police because he is Tamil, because he had applied for protection in Australia, and because he would be perceived as being opposed to the Sri Lankan government. The appellant also claimed to fear harm from Tamil groups opposed to the police because he had worked as a clerk for the police. 5 The Tribunal found that the appellant's evidence was not credible. It did not accept that he had been beaten by police. Based on this finding and recent country information, the Tribunal did not accept that he faced a real chance of harm or discrimination on the basis that he is Tamil. It did not accept that there is a real chance that he would be treated differently to any other failed asylum seekers who had left Sri Lanka illegally. It found that while he would be detained on his return to Sri Lanka, this would be as a result of non-discriminatory enforcement of a law of general application. 6 The Tribunal rejected the appellant's claim that he had received threatening phone calls. It did not accept that he faced any threat from the Liberation Tigers of Tamil Eelam (LTTE) or other Tamil groups on account of having worked as a police clerk. 7 The Tribunal also rejected the applicant's claim for complementary protection. The Tribunal found that the appellant had not satisfied the criteria in ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth), and accordingly affirmed the delegate's decision. 8 The appellant applied for review of the Tribunal's decision to the Federal Circuit Court. The appellant's case ultimately relied upon the following ground: Ground 4 The Tribunal committed jurisdictional error in that it failed to assess the particular social group that applied to the Applicant based on the material before the Tribunal and thereby committed jurisdictional error. Particulars (i) The Applicant is a Tamil, Catholic from Batticaloa who was employed in the Police force in Sri Lanka. (ii) The question of a particular social group arose with the following attributes: (a) persons employed in the Police force: (b) were Tamils (as the persecutors were Tamils and spoke Tamil (CB335 at [5]) (iii) The Tribunal failed to address any particular social group and thereby fell into error. 9 The appellant's counsel submitted that the Tribunal had failed to consider the claim said to have been made that the appellant was a member of a social group consisting of Tamils employed in the police force. The primary judge rejected the ground relied upon by the appellant on the following basis: 71. This ground is not made out. First, as the First Respondent pointed out, the Applicant's representative claimed to the Tribunal that the Applicant feared persecution as a member of two particular social groups: "employees of the police" and "failed asylum seekers returning to Sri Lanka". The Tribunal considered these claims. The Tribunal plainly understood that the Applicant claimed membership of these two particular social groups. It considered that he did not have a well-founded fear of persecution from any of the groups which he claimed to fear as a result. 72. It has not been established that an additional particular social group as now posited arose clearly or squarely on the material before the Tribunal. In any event, in considering the "employees of the police" claim, the Tribunal rejected the underlying factual basis for the claimed fear (that is, that threatening phone calls were received). The Tribunal also had regard to the fact that, on the Applicant's account, he was not being threatened because he was a Tamil, but rather because he worked for the police department. In this way it considered his individual circumstances. 73. The Tribunal made broad findings that dealt with the underlying factual claims, including the Applicant's claims to fear Tamils because he was an employee of the police force. It found there was no real chance the Applicant would be persecuted by the LTTE because he would be perceived as supporting the government because he worked as a clerk in the police department or by former members of the LTTE, LTTE sympathisers or members of the Tamil community associated with the LTTE if he returned to Sri Lanka now or in the reasonably foreseeable future. It did not accept he would be accused of being a spy due to his employment with the police. 74. As indicated, in considering whether the Applicant would be harmed by others as a result of his membership of the particular social group of employees of the police (as he had claimed), the Tribunal had regard to his evidence that he was not threatened because he was a Tamil. It did not accept on the evidence before it that there was a real chance the Applicant would be persecuted by groups opposed to the police, or even at the hands of those such as the Karuna group, who were neutral towards or even supported the government, but may have wished to gain cover for their illegal acts. In this context the Tribunal had regard to whether any political opinion would be imputed to the Applicant in support of the government because he worked for the police department, such as to expose him to a risk of harm from members of the Tamil community. 75. While the Tribunal clearly understood that the Applicant was a Tamil and considered his claim on that basis, the particular social group now proposed by counsel for the Applicant (including Tamil ethnicity as well as "employment… with the Police") was never expressly articulated by the Applicant and did not arise squarely on the material before the Tribunal. The Tribunal was not under an obligation to construct other particular social groups of which the Applicant might be a member. Rather, it had to address his claims as made to the Department and to it and as arose clearly on the material before it. In the absence of any evidence as to what occurred in the Tribunal hearing (other than the Tribunal reasons for decision) there is no evidence that at the hearing a connection was drawn between the Applicant's ethnicity and work for the police department such that a further particular social group arose for consideration on the material before the Tribunal. 76. Further, in considering whether the Applicant faced harm as a failed asylum seeker returning to Sri Lanka, the Tribunal considered his individual circumstances as a Tamil, as well as the fact that he was a failed asylum seeker. 77. Finally, and contrary to the Applicant's contention, in its conclusion in relation to the Refugees Convention criterion, the Tribunal did consider the Applicant's attributes cumulatively. It had regard to his Tamil ethnicity, his Catholicism, the fact he was from Batticaloa, his employment by the police, as well as whether he had any imputed political opinion either in support of the Sri Lankan government because he worked for the police department or in opposition of the Sri Lankan government because he was a Tamil, because he had applied for protection in Australia or because of his membership of the two particular social groups suggested by his representatives. It then stated (at paragraph 84): … I have considered the totality of [the Applicant's] circumstances as a Tamil and a Catholic who I accept was employed by the Police Department in Batticaloa for six years, who departed Sri Lanka illegally in 2012 and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future. 78. In this way the Tribunal considered the Applicant's attributes and the claimed bases for his fears, both individually and cumulatively. It has not been established that it erred in failing to consider, as a particular social group, the particular social group now posited. 10 Before this Court, the appellant's notice of appeal relies upon the following grounds: Ground 1 Her Honour should have found that the erred in considering the social group aspect of the claim (ABZ15 v MIBP & Anor [2018 FCCA 116 at [68] – [78]). Particulars (a) Her Honour should have found that the Tribunal failed to consider an important integer that, namely that the Applicant was Tamil. (b) He was in employment by Police. (c) The Tribunal should have found that Tamil attributed posed risk to the Appellant. (d) Her Honour has fallen into error. Ground 2 Her Honour should have found that the Tribunal erred on question of Appellant's detention for illegal departure (ABZ15 v MIBP & Anor [2018 FCCA 116 at [39] – [40]; [46] – [49]) and Appellant as particular target for mistreatment in detention. Particulars (a) The Tribunal accepted that the Appellant would be detained for leaving country illegally. (b) The Tribunal accepted that the Applicant would be detained (Tribunal at [87] – [90]) in poor conditions (Tribunal at [90]). (c) Her Honour erred in failing to find that the Tribunal's consideration of appellant generally was correct. (d) The Appellant would be targeted as former Tamil police clerk was not addressed. (e) Her Honour has fallen into error. Ground 3 Her Honour should have found that the Tribunal fell into jurisdictional error when constructively failed to exercise its jurisdiction by failing to ask correct questions and/ or asking incorrect questions and failing to consider whether, on return to Sri Lanka whether the Applicant would be subject to intimidation for favours by the businessman or other authorities. Particulars (A) The Applicant upon return would be returning where he perceives that his role in Police was influential. (B) The Applicant may be subject to threats by the businessman or other authorities for favour for his perceived connections and ability to assist. (C) Her Honour should have found that the Tribunal committed jurisdictional error. (Errors in original.) 11 The appellant is self-represented in the appeal. However, he was able to file written submissions seemingly with the assistance of someone with at least some legal background. His oral submissions did not elaborate upon the written submissions, but merely consisted of a statement that he cannot return to Sri Lanka for fear of his life. 12 The appellant's first ground of appeal is similar to the ground he relied on before the Federal Circuit Court. The appellant submits that the Tribunal ought to have considered his claim as "a returnee from western country with all the integers/attributes of a particular social group that applied to the Appellant". He submits that his attributes should have been considered cumulatively. He also submits that the Tribunal gave no consideration to his claim that being a police clerk of Tamil ethnicity exposed him to a greater risk of harm. 13 In my opinion, the primary judge's reasons provided a comprehensive and well-reasoned basis for rejecting the appellant's first ground. In particular, her Honour correctly held that the Tribunal had considered each of the bases of the appellant's claims to fear persecution individually and then cumulatively. Although the emphasis of the appellant's submissions is that the Tribunal failed to consider his claim to be a police clerk of Tamil ethnicity, the Tribunal's reasons demonstrate that this matter was expressly considered. The first ground must be rejected. 14 The appellant's second ground is to the effect that the Tribunal failed to consider the increased risk of harm that he may face when detained upon his return as a person who left Sri Lanka illegally, by reason of his having been a police clerk. That was not a ground raised before the primary judge, when the appellant was represented by counsel, and that provides a sufficient basis for rejecting the ground. In any event, that claim was never made to the Tribunal, nor did such a claim clearly arise on the material before the Tribunal. The Tribunal made no jurisdictional error by failing to deal with the claim that was not made and did not clearly arise on the material before it. 15 The appellant's third ground asserts that the Tribunal failed to consider whether, on his return to Sri Lanka, he would be the subject of intimidation for favours by businessmen or authorities on account of their perception that, having been a police clerk, he would have connections and an ability to assist them. That argument was not raised before the Federal Circuit Court and cannot succeed for that reason. Further, such a claim was never raised before the Tribunal, nor did it clearly arise on the material before the Tribunal. The Tribunal did not commit any jurisdictional error by failing to consider such an argument. 16 The appellant has not demonstrated any error on the part of the primary judge. The appeal must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 13 September 2018