SZBZP v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 617
•24 MAY 2006
FEDERAL COURT OF AUSTRALIA
SZBZP v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 617MIGRATION – judicial review – protection visa – Refugee Review Tribunal decision – judicial review before Federal Magistrate – whether any jurisdictional error disclosed – grounds of appeal challenging factual merits of Tribunal decision – no jurisdictional error disclosed – appeal dismissed with costs.
Migration Act 1958 (Cth)
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited
NAPL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 94 citedSZBZP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 227 OF 2006FRENCH J
24 MAY 2006
PERTH (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 227 OF 2006
On appeal from the Federal Magistrates Court
BETWEEN:
SZBZP
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
FRENCH J
DATE OF ORDER:
24 MAY 2006
WHERE MADE:
PERTH (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The notice of appeal is amended in accordance with the draft further amended notice of appeal dated 10 May 2006.
2.The appeal is 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
NEW SOUTH WALES DISTRICT REGISTRY
NSD 227 OF 2006
On appeal from the Federal Magistrates Court
BETWEEN:
SZBZP
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
FRENCH J
DATE:
24 MAY 2006
PLACE:
PERTH (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
Introduction
The appellant is an Indian national who was born on 22 July 1980 at Tamil Nadu in India. He is of Tamil ethnicity.
On 28 July 2000 the appellant entered Australia under a business visa. He was travelling with an Indian passport. On 24 August 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. A delegate of the Minister for Immigration and Multicultural Affairs refused his application on 7 November 2000. On 23 November 2000 the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of that decision.
Following a hearing on 24 May 2002 the Tribunal, on 31 May 2002, affirmed the delegate’s decision. The Tribunal’s decision was the subject of a judicial review application to the Federal Court on 23 July 2002. On 9 October 2002 the Court dismissed the application. However, the appellant appealed to the Full Court of the Federal Court on 29 October 2002. On 23 May 2003 the appeal was allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal for reconsideration.
On 29 September 2003 the second Tribunal, reconsidering the application for review, affirmed the original delegate’s decision not to grant the appellant a protection visa. The appellant then sought judicial review of that decision in the Federal Magistrates Court. On 24 January 2006 Barnes FM heard the application for judicial review and delivered judgment on the same day dismissing it. The appellant was ordered to pay the Minister’s costs fixed in the amount of $5,000. On 13 February 2006 the appellant filed a notice of appeal against the decision of the Federal Magistrates Court. On 10 May 2006 the appellant filed a motion seeking leave to further amend the grounds of appeal. The draft further amended notice of appeal sought leave to advance some grounds of appeal which did not reflect grounds of judicial review raised before the learned Federal Magistrate.
For the reasons that follow, although I have decided to allow the amendment of the notice of appeal, none of the grounds of appeal have any merit. They do not disclose any jurisdictional error on the part of the Tribunal and the appeal will be dismissed with costs.
Claims in Support of the Original Application for a Protection Visa
In a statutory declaration which accompanied his application for a protection visa the appellant said that he had studied at National Higher Secondary School at Mannargudi until 1997. He graduated with a ‘Diploma in Automobile’ (sic) from the Shanmugha Polytechnic at Vallam in Thanjavur District. While a student, presumably at the Polytechnic, he said he became the College Students’ Secretary. He organised demonstrations in support of Sri Lankan Tamils because he believed that they were persecuted by the Sri Lankan government.
Because of his work at the College the appellant was contacted by the Tamil Tigers, members of the Tamil organisation known as LTTE, and asked to help them. He said that he readily accepted that obligation. He rented a house for Tamil Tigers where they could stay. After he finished his studies he worked for them collecting blood and purchasing clothes, diesel and medicines.
Tamil Tigers (presumably those staying at the house which he had rented) were arrested by police. The appellant was also arrested ‘on suspicion’. While in police custody at Thanjavur he was kept ‘half naked and tortured’. He claimed that false charges were framed against him and that he was locked up for a month. After he was released he went to Vedaranyam and tried to start a new life with some relatives. However during this time his parents and sisters were constantly threatened by police.
On another occasion Tamil Tigers trying to smuggle diesel and medicine were arrested. Police suspected him also and arrested him again. He was taken into custody and chained by both arms and interrogated. He claimed that police forced him to sign blank papers and asked him to confess to false charges. He refused and was beaten cruelly and put into gaol at Cuddalore for three months. Again he was released and then went to Mumbai and did casual work. Because of what he described as ‘continuous torture’ by the police and intimidation of the Tigers he decided to leave India. He obtained a visa to Australia with the help of some friends and on 28 July 2000 arrived in Sydney. He said:
‘I strongly believe that the Indian Police framed up new charges against me and involved me in old and new cases. Therefore I appeal to you to sympathetically consider and grant me refugee status in Australia.’
The statutory declaration did not set out any dates on which the appellant was arrested or the periods that elapsed between various incidents and movements referred to in the declaration.
The First Tribunal’s Decision
In the reasons for decision of the first Tribunal, which were published on 31 May 2002, it was accepted that the appellant was sympathetic to the cause of the Tamil Tiger organisation, the LTTE, and that he had agreed to work for them. He was well aware that the LTTE was a banned organisation in India. The first Tribunal accepted that he was arrested and questioned by police and that during that time he was subject to beatings. It also accepted that within a few months, namely November 1999, he was again arrested on suspicion of being involved with the LTTE and held for a period of three months. It was also ‘prepared to accept’ that during that time he was subjected to some mistreatment by police during interrogation.
The first Tribunal found that the appellant was arrested and detained on the two occasions mentioned for suspected breaches of the Indian Penal Code, a law of general application in India. It was satisfied that whilst he may have suffered some mistreatment by police in the past, and might fear some further mistreatment in the future either by the police or the LTTE, what he had suffered in the past was not persecution for a Convention reason. It found that his mistreatment by police arose from their reasonable suspicions of his involvement in criminal activity. The first Tribunal said (at [60]):
‘While their methods may have been suspect, I am satisfied that the police were involved in the legitimate exercise of their police duties and were not subjecting the Applicant to persecution for a Convention reason. I am also satisfied that subsequent inquiries by police about the Applicant of his family were also a legitimate exercise by police of their policing function.’
Even if what he had suffered before coming to Australia had been for a Convention reason the Tribunal was not satisfied that what the appellant had suffered in Tamil Nadu before his departure was serious enough to amount to persecution. There was nothing of the nature of ‘serious harm and systematic and discriminatory conduct’ in the actions of police in arresting and interrogating the appellant.
Judicial Review of the First Tribunal’s Decision
On 9 October 2002 Wilcox J dismissed the appellant’s application for judicial review of the first Tribunal’s decision. He did so on the basis that the privative clause provision, s 474 of the Migration Act 1958 (Cth), precluded the Court from intervening, even if jurisdictional error had been made out. His Honour was of the view nevertheless that the first Tribunal had fallen into jurisdictional error. The most obvious example was its failure to deal with the appellant’s claim that he was at risk of persecution by the LTTE.
His Honour said that the first Tribunal’s conclusion that police had been involved in the legitimate exercise of their duties and did not subject the appellant to persecution for Convention reasons, was ‘startling’. It was not apparent why the Tribunal member thought that police would, in the legitimate exercise of their duties, hold a person for weeks, or months, at a time, without charge, and assault him during detention. Nevertheless his Honour held that the first Tribunal’s conclusion was one of fact and not susceptible to review in the Court. As to the conclusion that the treatment or mistreatment received by the appellant did not amount to persecution within the meaning of the Convention, his Honour held that although he found it a startling conclusion, it was a conclusion of fact.
His Honour’s decision was made before the judgment of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. which held that decisions under the Migration Act were amenable to judicial review for jurisdictional error. An appeal from his Honour’s decision to the Full Court was allowed on 20 May 2003 – NAPL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 94. The decision of the High Court in Plaintiff S157/2002 had been delivered between the time at which Wilcox J delivered his judgment and the time at which the Full Court delivered its judgment.
The respondent Minister, before the Full Court, did not challenge the finding by Wilcox J that there had been jurisdictional error of law on the part of the first Tribunal. The decision of Wilcox J was set aside, as was the decision of the first Tribunal of 31 May 2002 and the matter remitted to the Tribunal for reconsideration in accordance with law.
The Reasons for Decision of the Second Tribunal
The second Tribunal, constituted by a different Tribunal member, reviewed the claims made by the appellant and the evidence relevant to them. It referred to the statutory declaration dated 24 August 2000 which had accompanied the original protection visa application.
The appellant’s claims at the hearing before the first Tribunal were summarised by the second Tribunal. At that hearing on 24 May 2002 the appellant said he feared he would be killed if he returned to India. He feared the police because he had opposed the police department in the past and supported the LTTE. He now also feared the LTTE because he felt that if he were arrested the LTTE would be concerned that he might reveal what he knew of them. He told the first Tribunal that he had been approached by the LTTE to assist them in about May 1999 and had rented a house for them in about June 1999. He was first arrested in September 1999.
The appellant had told the first Tribunal that he was never put before a court or put on trial and that no sentence was imposed on him. During the first one month detention he had been beaten, not given regular meals and not provided with proper water or clothes.
The second Tribunal referred to the appellant’s evidence in the first Tribunal hearing that he had been arrested at the end of November 1999 and held for three months and that the police had not preferred charges against him. He had claimed, before the first Tribunal, that he had not been subjected to beatings on that occasion but had suffered mental distress. He had not been arrested again. His protection visa application had made a reference to ‘continuous torture’. Asked about this he had told the first Tribunal that the police had approached his family on occasions asking about his whereabouts and threatening family members.
The appellant had told the first Tribunal that he had stopped helping the LTTE because of the torture inflicted on him by the police. The LTTE had not accepted this and had asked him to provide help which he declined. He was having trouble from both the police and the LTTE. He agreed with a proposition put to him by the first Tribunal that he had been arrested because he was suspected of breaches of laws which applied to everybody in India. He also agreed that it was not surprising that the police took a continuing interest in him because of his past involvement with the LTTE.
The appellant had told the first Tribunal that the LTTE would take revenge against him. The fact that he no longer wanted to help them would be seen as a betrayal. Wherever he went in India they would seek him out. While he had no difficulties leaving India and acknowledged that upon his return he might not have problems with the police, he would have trouble with the LTTE. Were he to approach the police for assistance he feared that officers who supported the LTTE might inform on him to the LTTE.
The appellant had agreed with a suggestion made by the first Tribunal that any mistreatment he suffered was because of his involvement in criminal activity in Tamil Nadu and not for a Convention reason. He had said however that he did not know at the time that what he was doing was wrong. His real problem was with the LTTE. His life was in danger and Australia should give protection.
The second Tribunal referred to the appellant’s oral testimony before it on 17 July 2003. He told the second Tribunal that while he had obtained a business visa to come to Australia his real purpose had been to escape mistreatment experienced in India at the hands of the LTTE and the Indian police. He had worked at casual jobs in fruit shops in India and, while not employed in Australia at the time of lodging his protection visa application, he had since obtained work here in a food processing company.
The second Tribunal noted that the appellant’s passport showed a departure stamp from Chennai airport in July 2000. It asked the appellant whether he had experienced any difficulties in leaving India openly. It put to him that independent country information indicated that a person of interest to the Indian authorities, for example due to an outstanding charge, would not be able to leave in that way. The appellant said that he had come to Australia to attend a Hindu religious ceremony and had been dressed in special clothing with a group of similarly attired people. He did not respond to the second Tribunal’s further comment that despite being part of a religious group and dressed like its members, he had been able to depart India openly and in his own name without difficulties from the authorities.
The appellant told the second Tribunal that a ceasefire had occurred in Sri Lanka between the government and the LTTE and had been in place for over 18 months. Negotiations, complex and contentious, continued and there appeared to be some movement towards agreement on an autonomous region for Tamils in Sri Lanka.
The appellant said that the LTTE regarded the negotiations as unsatisfactory having regard to the rights that it had demanded. In the appellant’s view the problems in Sri Lanka had not come to an end and there would not be a solution. In further discussion the Tribunal suggested that there had now been an absence of fighting for a considerable period and that the LTTE had dropped the crucial demand for an independent Tamil state. The appellant said the LTTE wanted to end the loss of lives and believed that the peace talks could lead to a solution. However the Sri Lankan government was refusing to accept its demands.
Asked why the LTTE needed his continuing assistance, the appellant said that they needed it to maintain a presence in Tamil Nadu. The second Tribunal noted that the LTTE in Tamil Nadu had been able to survive for the three years the appellant had been in Australia without the assistance he had previously provided. The appellant said nevertheless he would be asked for help on his return and would be subjected to retribution by the LTTE for having ceased to help them before his departure from India. As to the availability of police assistance with respect to attacks or threats by the LTTE, the appellant said he had not sought such assistance because the police were aware of his former assistance to the LTTE.
The Tribunal found that on two occasions in 1999 the appellant had been arrested and held in custody and interrogated by police. However it held that while it was plausible that he might have suffered ‘unpleasant treatment’ that treatment did not amount to serious harm or mistreatment.
The second Tribunal considered the appellant’s claim that he was able to leave India only because he hid himself in a Hindu religious group was unconvincing. It concluded, on the basis of his testimony at the hearing, that he was able to leave India unhindered despite independent country information suggesting some capacity by Indian authorities to impede departure by persons wanted by them.
The second Tribunal referred to the state of hostilities between the LTTE and the Sri Lankan government. It took account of the peace process in Sri Lanka under which, since late 2001, the LTTE and the Sri Lankan government had ceased hostilities and moved towards a settlement. It cited three documents in support of this conclusion. The first was from a BBC News World Edition item ‘Timeline: Sri Lanka’. This stated (at [51]):
‘The election of December 2001 was narrowly won by the United National Party led by Ranil Wikramasinghe. In February 2002, following talks sponsored by Norway, the new government signed a ceasefire agreement with the LTTE, and in September a first round of talks began in Thailand. Prisoners of war were exchanged and the government lifted the ban on the LTTE.’
The second was a report from the Sunday Observer of 27 October 2002 (at [51]):
‘The ceasefire of December 2001 has now held for almost two years. About 200,000 displaced people have returned to their homes.’
The third report was from a document dated 9 September 2003 in which it was stated (at [51]):
‘Talks entered a new phase in mid-2003 with the LTTE putting forward new autonomy proposals in on-going discussions with the Sri Lankan government.’
The second Tribunal considered that the situation reflected in the country information considerably reduced any likelihood that Indian authorities would pursue the appellant in connection with his past pro-LTTE activities. The Sri Lankan government had embarked on a process of dialogue with the LTTE which had continued, although with continuing contention, for nearly two years. Given these changed circumstances, the second Tribunal did not consider that Indian authorities were likely to show the same concerns about pro-LTTE activity in Indian as had been the case four years earlier when the neighbouring government in Sri Lanka was engaged in combating guerrilla warfare mounted by the LTTE. Moreover the appellant had been investigated and, in the second Tribunal’s view, found not to have committed any offence requiring on-going action. Because of this the second Tribunal found that the appellant did not face a real chance of experiencing Convention-related persecution arising from his past association with the LTTE in India or his pro-Tamil political opinion.
The second Tribunal also found the appellant’s concerns about the possibility of action against him by the LTTE if he were returned were not well-founded. There was no reason, in view of the peace process, why the LTTE would wish to seek the assistance of the appellant or to ‘punish’ him for withdrawing that assistance. It suggested that the appellant might have an inflated idea of the assistance he provided to the LTTE as a 19 year old supporter of their cause and the extent to which they would now be concerned about his 1999 decision, following police action, to abandon that assistance.
The second Tribunal noted that the appellant’s claims that his parents had sometimes been contacted by the LTTE asking about his whereabouts were unsupported by any material. It found that there was no real chance that the LTTE would either put pressure on him or provide assistance against his will or seek retribution from him for his past withdrawal of assistance. If, contrary to that finding, there were some risk of action against the appellant by the LTTE, the second Tribunal found he would be able to obtain effective protection from the Indian authorities. The action taken against the appellant himself over his LTTE associations suggested a readiness by the police to take action against illegal LTTE activity. The appellant’s contention that corrupt police paid by the LTTE might victimise him was not supported by evidence available to the Tribunal or by any material previously provided by the appellant.
The second Tribunal considered, given the appellant’s stated views and his scepticism about the continuing peace process, that he remained sympathetic to the Tamil cause and that he might undertake pro-LTTE activity on his return to India. However, in the circumstances applicable at the time of the decision and in the reasonably foreseeable future, there was no real chance of such conduct leading him to face Convention-related persecution by the Indian authorities.
The second Tribunal concluded that the appellant’s claims did not establish that he faced a real chance of serious harm or mistreatment on return because of his ethnicity, religion, nationality, membership of a particular social group or political opinion.
The Application for Judicial Review of the Second Tribunal Decision
In an amended application for review filed in the Federal Magistrates Court on 13 September 2004, the appellant set out the following grounds of review:
‘1.Firstly I would like to point out an inconsistency within the RRT’s findings: in para 48 of the decision, it has stated that I didn’t provide any material to support my claim that I was mistreated & not properly clothed during my detention by the police. But in para 49, it has concluded that my treatment did not amount to serious harm (or) mistreatment.
2.Like the above finding, the RRT has dismissed several of my claims purely on the basis that I was unable to provide additional material (08) detail (eg) findings in para 50 & 54. There are 2 main reasons why I am unable to provide these materials (A) the police did not deal with me or detain me according to law. In other words pro-LTTE activists were arrested & mistreated without legally charging them. This makes impossible for persons like me to provide any legal evidence. (B) If at all, I can provide any material now, I’ve to seek the assistance of my family in India who, since they live in Village doe not have enough exposure to help me with this.’ (sic)
After setting out the factual and procedural background and the decision of the second Tribunal, the learned Federal Magistrate identified the two grounds raised in the amended application. As to the first of those grounds, namely inconsistency in the Tribunal’s findings, the learned Federal Magistrate held no jurisdictional error was established. He observed that in para 48 the second Tribunal accepted the appellant’s testimony that his past activities had led to his being interrogated twice. It had recited the claims he made at the first hearing, the absence of detail or supporting material to support those claims and his evidence at the second hearing and explanation for what he had meant by ‘torture’. In para 49 the second Tribunal had undertaken the task of assessing whether the appellant had suffered serious harm in the past.
The learned Federal Magistrate said (at [17]):
‘The applicant takes issue with the Tribunal’s factual findings. The claim that the first Tribunal took a different approach to the evidence of the applicant is not such as to establish jurisdictional error on the part of the second Tribunal. It was a matter for the second Tribunal to weigh the evidence before it and to make findings on the basis of that evidence.’
The second Tribunal’s finding that the appellant had been interrogated by police on two occasions while detained was a reference back to its summary of his claims in the protection visa application relating to his mistreatment. The second Tribunal accepted the elements of mistreatment claimed by the appellant in relation to his first detention. Even if it found that such treatment did not amount to serious harm or persecution that was a conclusion of fact which did not establish jurisdictional error. The second Tribunal had regard not only to the absence of detail or additional material to support the elaboration of the claims about mistreatment during the first detention, it also had regard to the appellant’s explanation that he had not been beaten during the second detention but suffered mental distress. In the circumstances there was no inconsistency in the second Tribunal’s decision which could constitute jurisdictional error.
The learned Magistrate held that the finding in relation to past mistreatment was not, in all the circumstances, critical to the Tribunal decision given its finding that circumstances had changed in India and that the appellant was no longer of interest to the Indian authorities.
The learned Magistrate then turned to the second ground relied upon in the amended application namely that the second Tribunal had dismissed several of the claims on the basis of the absence of additional material or detail. This ground, however, was held not to establish jurisdictional error. It was open to the second Tribunal not to accept the appellant’s claim that Indian police were still arresting and questioning people who helped the LTTE in the past in the absence of material supporting that claim. It was not suggested that the appellant had in fact provided details in respect of his claim to be subject to new charges or any supporting documentation. It was open to the second Tribunal not to accept those claims without further detail. In relation to the claim that the appellant feared harm from the LTTE, it was open to the second Tribunal to make the findings that it did on the material before it. In so doing it made no jurisdictional error. The appellant also challenged in written submissions the second Tribunal’s finding that he could only leave India because he had been able to hide himself in a Hindu religious group was unconvincing. Again, this claim went to the merits of the decision and did not establish jurisdictional error.
The appellant took issue with the second Tribunal’s reference to the peace process in Sri Lanka since late 2001. The appellant claimed there was news about recent developments in Sri Lanka that had put the peace process in jeopardy. He referred to internet sources discussing events in Sri Lanka. The learned Federal Magistrate found there was no suggestion that this was material before the Tribunal or that it related to the situation in Sri Lanka as it stood at the time of the Tribunal decision. The information as to later developments in Sri Lanka would not assist the Court to determine whether or not the Tribunal fell into jurisdictional error on the material before it.
The Amended Grounds of Appeal
In a draft further amended notice of appeal the appellant advanced a number of particularised grounds which it is convenient to set out as follows:
‘(1) The Tribunal made jurisdictional error as in finding that the applicant does not face a real chance of experiencing Convention-related persecution at the hands of the Indian authorities now or in the reasonable future, the Tribunal failed to ask two critical questions that it should have asked.
Particulars
(a) Firstly it failed to ask “Since the Srilankan (sic) peace proposals have broken down now does the applicant have a well-founded fear on the basis that the civil war might start sometime in the future which might make him subject of persecution by both LTTE and Indian authorities”
(b) Secondly it also failed to ask “Though the Indian police had legitimate interest in pursuing the applicant, could the harm that the applicant was subject to because of his political opinion in support of LTTE, make the punishment he was subject to, a Convention-based harm”
(2) The Tribunal made jurisdictional error as it failed to consider the issue of whether it would be reasonable for the applicant to seek protection from police because of the past persecution/harm he encountered from police themselves.
Particulars
In assessing whether it is reasonable for the applicant to access state protection, the Tribunal must ask the question whether it is reasonable for the applicant to access that state protection. In asking that question the Tribunal must look at the fact that the applicant was seriously harmed by the police and ask whether it would be reasonable for the applicant to seek the protection. It failed to do that.
(3) The Federal Magistrate erred by not holding that Tribunal made jurisdictional error in interpreting and applying what is meant by serious harm and held that what Applicant suffered was not persecution.
Particulars
In paragraph 18 of her decision (AB 151.80) Her Honour said that even if the conclusion that the treatment the applicant suffered was not serious harm or persecution could be called “startling one” it is a conclusion of fact and does not establish jurisdictional error.
The Tribunal said in para 48 at CB 96.20 that:
The Tribunal finds, on the basis of the applicant’s testimony and the material he has put before the Tribunal as discussed above, that on two occasions in 1999 he was arrested, held in custody and interrogated but that, while it is plausible that he may have suffered unpleasant treatment, this treatment did not amount to serious harm or mistreatment as discussed in para 8 above.
(4) The Federal Magistrate erred by not holding that the Tribunal made jurisdictional error in as it stated that in the absence of corroborative evidence it will not accept some of the applicants claims
Particulars
In Para 22 (AB 153.20) the learned Federal Magistrate said that:
The second ground relied on in the amended application is that the Tribunal dismissed several of the applicant’s claims purely on the basis that he was unable to provide additional material or detail. Reference is made to paragraphs 50 and 54 of the Tribunal reasons for decision which referred to the absence of supporting material in relation to police activities in India, in relation to the charges which the applicant claimed had been laid against him and in relation to incidents where the LTTE contacted people and sough (sic) the assistance of former helpers or as to any retribution against former helpers.
Ground 5
(5)(a) Federal Magistrate erred by not holding that the Tribunal made jurisdictional error in making a critical finding without evidence
(5)(b) Federal Magistrate erred by not holding that the Tribunal made jurisdictional error as it was unreasonable for the Tribunal to make a critical finding without carefully considering the evidence it itself had which did not support the finding it made.
(5)(c) The Federal Magistrate also should have held that the Tribunal constructively failed to exercise its jurisdiction in not considering the evidence it has at page CB 135.80 which said that “Tamil Tigers suspend their participation in peace talks, saying they are being marginalized”
Particulars for 5(a)-(c)
At 97.6 the Tribunal found that “The Srilankan (sic) government has embarked on a process of dialogue with the LTTE which has now continued (though with continuing contention) for nearly two years.’
Grounds 3 and 4 of the draft amended notice of appeal reflected the terms of grounds 1 and 4 of the notice of appeal as originally filed. The new grounds raised were grounds 1, 2 and 5.
The Merits of the Grounds of Appeal – Actual and Proposed
Three of the grounds of appeal set out in the proposed notice of appeal are new. Much of the proposed grounds of appeal has little or any bearing on the grounds of review argued before the learned Magistrate. The appellant also seeks to put before the Court part of the transcript of the proceedings before the second Tribunal.
The threshold question in consideration of any proposed ground of appeal involving argument not advanced at first instance, is whether the ground has any merit. In my opinion, the question of merit can be dealt with shortly in respect of each of the principal grounds and is dispositive of the appeal. I shall consider each of the grounds set out in the proposed amended notice of appeal from that perspective. In my opinion none of the grounds has merit. Each tries, in a different way, to attack the Tribunal’s findings of fact. None exposes jurisdictional error.
Ground (1)
The first ground relates to the second Tribunal’s conclusion that the appellant did not face a real chance of Convention-related persecution at the hands of Indian authorities. The jurisdictional error alleged is the failure to ask ‘two critical questions’ relevant to that issue.
The first ‘critical question’ assumed the breakdown of the Sir Lankan peace negotiation at the time the second Tribunal made its decision. The second Tribunal referred to country information in relation to the peace process. Counsel for the appellant said, in written submission, that the Tribunal had ‘misconstrued the most recent country information’. He referred to an extract from the country information dated 9 September 2003, cited by the Tribunal, which said that ‘Sri Lankan rebels moot proposals to revive peace talks’ and ‘Timeline Sri Lanka’ in April 2003 said that:
‘Tamil Tigers suspend their participation in peace talks saying they are being marginalized.’
The Tribunal referred to the peace process as ‘contentious’. Its conclusions were of a factual character. While there might be debate about how they were reached, no jurisdictional error is disclosed under this aspect of ground (1).
The second question under ground (1) turned on the Tribunal’s statement at [48] thus:
‘The applicant acknowledged at that hearing that the reason for these arrests was that he was suspected of breaches of law applying to everyone in India; he agreed that it was not surprising the police took a continuing interest in him in view of his past association with the LTTE and that this interest was legitimate police work and not Convention-based persecution.’
Counsel for the appellant argued that in effect the Tribunal was addressing a false issue, namely whether the appellant’s arrest and detention were Convention-related. It should have been asking whether the harm he had suffered at the hands of the police was Convention-related. However, as was pointed out by counsel for the respondent, the Tribunal said (at [49]):
‘The information available to the Tribunal suggests that the outcome of these investigations in 1999 was that the applicant was not convicted, further charged or subjected to any penalty. The applicant acknowledges that the effect of the investigations was to dissuade him from providing further assistance to the LTTE. The Tribunal finds, on the basis of the applicant’s testimony and the material he has put before the Tribunal as discussed above, that on two occasions in 1999 he was arrested, held in custody and interrogated but that, while it is plausible that he may have suffered unpleasant treatment, this treatment did not amount to serious harm or mistreatment as discussed in para 8 above.’
The reference to para 8 was a reference to the discussion earlier in the Tribunal’s reasons of the requirement that the applicant for a protection visa must have a fear of persecution. The concept of ‘persecution’ under the Convention is qualified by s 91R of the Act which requires that it must involve ‘serious harm’ to the applicant and systematic and discriminatory conduct. It is notable that the Tribunal did not make any finding of mistreatment beyond ‘unpleasant treatment’ at the hands of the police. It referred to his claim that during his first detention he was beaten and not properly fed or clothed. However in his second detention he was not beaten but suffered mental distress. The continuous ‘torture’ referred to in his documentary testimony was a reference to the emotional impact upon him of alleged police approaches to his family asking about his whereabouts.
Again, in my opinion, having regard to its findings of fact, the Tribunal has not failed to address the criteria which it was required to address for the purpose of determining the appellant’s eligibility for a protection visa. The conclusions it reached may be contestable as matters of fact, but not in this Court.
Moreover, as counsel for the respondent points out in written submissions, that the learned Federal Magistrate observed that the Tribunal’s decision did not depend upon its characterisation of the appellant’s past mistreatment. The learned Federal Magistrate said (at [19]):
‘Moreover, the finding in relation to past mistreatment is not in all the circumstances critical to the Tribunal decision given its finding that circumstances had changed in India and that, on the basis of these changed circumstances and the limited involvement of the applicant in the past, he was no longer of interest to the Indian authorities. Hence whether the applicant had suffered serious harm in the past was not determinative.’
As counsel for the respondent pointed out, the Tribunal’s lack of satisfaction that there was a protection obligation towards the appellant depended upon its assessment of what the appellant had a real chance of facing in the reasonably foreseeable future.
Ground (2)Ground (2) raises the question whether the Tribunal failed to consider the reasonableness of the appellant invoking State protection having regard to the persecution he had previously encountered from police. At [56] of its decision the Tribunal said:
‘The Tribunal considers that if, contrary to its finding above, there is some risk of action against the applicant by the LTTE, he would be able to obtain effective protection from the Indian authorities…’
Counsel for the appellant argued that the Tribunal must ask the question whether it is reasonable for the particular appellant to access that State protection. It failed to have regard to the antecedent history of treatment of the appellant by police. Counsel referred to part of the transcript of the hearing before the Tribunal in this regard. In that part of the hearing the appellant expressed his lack of trust or belief in the police because many of them, he thought, helped the LTTE.
Counsel for the respondent contended that the question which was posed by the appellant was not a question which the Tribunal was jurisdictionally obliged to ask. It was required to consider whether the appellant’s fear was objectively well-founded. As was pointed out on behalf of the respondent, the Tribunal clearly found that the appellant was no longer of interest to the police as a result of his past activities. In my opinion, there is no jurisdictional error disclosed under ground (2).
Ground (3)
Ground (3) asserted a misinterpretation on the part of the Tribunal of serious harm in its holding that what the appellant suffered was not persecution. This was a matter which had been raised before the Federal Magistrate.
The learned Federal Magistrate found that the Tribunal accepted the elements of mistreatment claimed by the appellant in relation to the first detention as alleged in the statutory declaration accompanying his protection visa application. However, even if the Tribunal found that such treatment did not amount to ‘serious harm’ or ‘persecution’ within the meaning of the Convention, such a finding, as Wilcox J said of the first Tribunal’s finding, while startling, would be a conclusion of fact and not reflective of jurisdictional error. And as the learned Magistrate added (at [18]):
‘Further the Tribunal in this instance had regard not only to the absence of detail or additional material to support the subsequent elaboration of his claims about mistreatment during his first detention, but also to his explanation that he had not been beaten during his second detention but suffered mental distress in its finding. It also noted the absence of further clarification at the second hearing. In these circumstances there is no inconsistency in its decision such as to constitute jurisdictional error.’
Importantly, even if the past mistreatment in the first detention in 1999 had constituted persecution for a Convention reason, it had no real bearing upon the outcome of the Tribunal’s decision which depended, in part, upon changed circumstances in India at the time of its decision.
Ground (4)
In support of ground (4) the appellant referred to para 22 of the judgment of the learned Federal Magistrate which has already been set out in the recitation of the proposed grounds of appeal.
The reference to the Tribunal’s reasoning about corroborative material appears to be a reference to paras 50 and 54 of the Tribunal’s reasons. The Tribunal noted in para 50 that although the appellant had claimed in his protection visa application that Indian police had framed new charges against him and involved him in old and new cases, he gave no details such as the dates or the nature of the charges. At para 54 the Tribunal referred to the appellant’s claims that his parents had been contacted by the LTTE from time to time asking about his whereabouts. The Tribunal noted that these claims were ‘unsupported by any material put forward by the applicant and finds that there is no real chance that the LTTE would either put pressure on him to provide assistance against his will or seek retribution from him for his past withdrawal of his assistance’.
These paragraphs in the Tribunal’s reasons do not involve any impermissible requirement that claims made by an applicant will not be accepted unless corroborated. What they indicate is that in the circumstances of this particular case, absent any independent material, the Tribunal was not prepared to rely upon the appellant’s claims. There is no jurisdictional error in that approach.
Ground (5)
As to ground (5) this does not appear from the particulars or the submissions to raise any new issue.
Conclusion
The appellant was unrepresented before the learned Federal Magistrate. He had had representation on appeal in this Court and the merits of the proposed grounds of appeal were fully argued. I have dealt with the merits of those grounds. In my opinion the proposed amendments to the notice of appeal should be allowed and the appeal dismissed.
For the preceding reasons, the appeal will be dismissed with costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 24 May 2006
Counsel for the Applicant: Mr T Silva Solicitor for the Applicant: Silva Solicitors Counsel for the First Respondent: GT Johnson Solicitor for the First Respondent: Clayton Utz Date of Hearing: 11 May 2006 Date of Judgment: 24 May 2006
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