SZRHH v Minister for Immigration
[2012] FMCA 843
•14 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRHH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 843 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in interpretation of the term “for reason of” – whether Tribunal made findings in the absence of evidence – whether Tribunal failed to make findings as to fear of persecution for reason of membership of a particular social group – whether Tribunal failed to address one of the applicant’s claims – whether Tribunal erred in proceeding on the basis of a criminal conviction of the applicant that was subsequently set aside. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth) Migration Act 1958 (Cth), ss.48B, 477 |
| Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225; [1997] HCA 4 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Karmaker v Minister for Immigration [2011] FMCA 595 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 WAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 896 |
| Applicant: | SZRHH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 659 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 19 July 2012 |
| Date for Last Submission: | 24 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Legal Aid NSW |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time for making this application is extended up to and including 26 March 2012.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 659 of 2012
| SZRHH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Extension of time
This is an application for review of a decision of the Refugee Review Tribunal dated 9 January 2012 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa.
In the application filed in this Court on 26 March 2012 the applicant sought an extension of time. The grounds for an extension of time were said to be as follows:
The applicant considers it is necessary in the interests of the administration of justice to extend time because the applicant is unrepresented, has been held in remote detention since his arrival in Australia and has not been able to access legal advice. The applicant intends to apply for legal aid.
Further, the applicant was moved from Christmas Island to Curtin Immigration Detention Centre just prior to the decision date. Due to this, the applicant was very unsettled as there were (sic) no case management support from the Department of Immigration and Citizenship. Then, there was an extended holiday from Good Friday to Anzac Day. Due to all these, the applicant could not find a Justice of the Peace or a lawyer at the new location to witness his signature.
Subsequently the applicant obtained legal aid. An amended application was filed on 25 June 2012 and a further amended application filed with leave of the Court on 19 July 2012. In the further amended application the grounds for an extension of time were said to be that the “applicant was moved from Christmas Island (sic) to Curtin Immigration Detention Centre just prior to the date of the decision”, that “[h]e was unsettled by the move, and had difficulty obtaining legal advice on making an application to the Court”, that he “was unable to find a person to witness his signature on an affidavit in support” and that the “substantive application ha[d] good prospects of success”.
However in support of his application for an extension of time the applicant also relied on an affidavit affirmed by him on 6 July 2012. He was not required for cross-examination. It is the applicant’s evidence that he was in prison when he received the Tribunal decision of 9 January 2012. On 27 January 2012 he was released from prison and taken to the Perth Immigration Detention Centre.
The applicant attested that he was told by the migration agent who had helped him before the Tribunal that his “only choice” was to appeal to the Minister. He was transferred to the Curtin Immigration Detention Centre after about 10 to 14 days. He arrived in a “very depressed” state, not knowing what to do next. His evidence is that “[a]t Curtin 4 or 5 Case Managers… told [him he] had to write to the Minister otherwise [he] would be forcibly removed back to Sri Lanka”.
The applicant claimed that he met another Sri Lankan man in the Curtin Immigration Detention Centre with “similar problems” who told him he had to appeal to the Court and “find a form” on which to do so. As he could not locate the form he used a friend’s form and lodged the appeal with the Court. He now understands from Legal Aid NSW, who are acting for him, that in the application form he provided some incorrect information, in particular that he was in detention during a Good Friday to Anzac Day extended holiday. He now understands that this was incorrect. He was scared and worried about his situation and just copied the words in his friend’s form because he had no legal advice about what to do.
Relevantly, s.477(1) of the Migration Act 1958 (Cth) provides that an application to this Court for a remedy in relation to a migration decision (such as a decision of the Tribunal) must be made within 35 days of the date of the decision. That did not occur in this case. However, under s.477(2) the Court may, by order, extend that 35 day period as it considers appropriate if an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The applicant has made an application for the order in writing and has specified why he considers it necessary in the interests of the administration of justice to make the order. I accept his evidence as an explanation for the reference to the Good Friday to Anzac Day period in his original application. This was clearly incorrect in relation to 2012.
The Court must consider whether it is necessary in the interests of the administration of justice to extend the time for making the application. The application for an extension of time was listed for hearing at the same time as the final hearing. Thus the parties had the opportunity to address all of the grounds on which the applicant seeks to rely.
Of particular relevance are issues such as the extent and nature of any delay, and any explanation provided by the applicant in that respect, and also whether there is any merit in the substantive application (SZNZI v Minister for Immigration & Anor [2010] FMCA 57). It is also relevant as part of all the circumstances to have regard to factors such as whether there is any prejudice to the respondent, the impact on the applicant, the interests of the public at large and the Court’s discretion itself (see Karmaker v Minister for Immigration [2011] FMCA 595). The Court has a wide discretion. I accept the submission for the applicant that regard may be had, amongst other things, to the ability of potential litigants to gain access to the Court process. An individual’s personal circumstances may be relevant to the interests of the administration of justice.
The Tribunal’s decision was dated 9 January 2012. The applicant sought review on 26 March 2012, over a month beyond the 35 days provided for in s.477(1) of the Migration Act. This is a relatively short delay having regard to the applicant’s circumstances at the relevant time. The applicant was in prison (having been convicted of people smuggling offences) at the time of the Tribunal decision. The conviction was set aside on appeal. The Commonwealth Director of Public Prosecutions discontinued a further trial on 27 January 2012. On the same date the applicant was released, but immediately taken to an immigration detention centre where he was advised by his migration agent that his only choice was to appeal to the Minister. He was only in the Perth Immigration Detention Centre for about 10 to 14 days and was then transferred to Curtin Detention Centre where he was told by various case managers that he had to write to the Minister or he would be removed to Sri Lanka. It was only when the applicant met another Sri Lankan man that he was told that he had a right to seek review of the Tribunal decision in the Federal Magistrates Court.
I accept the applicant’s unchallenged affidavit evidence in explanation of his delay in filing the application in this Court. It is of concern that his evidence suggests that applicants in detention may be given incomplete or incorrect information about available action in relation to an adverse decision of the Refugee Review Tribunal.
Counsel for the respondent contended that it was not entirely clear why the applicant, who was now legally represented, could not have become legally represented at an earlier time. Mr Reilly took issue with the limited inquiries made by the applicant and suggested that he could have made other inquiries and that it had not been entirely explained why it took him so long to file the application.
I do not accept that, having been given incorrect advice about his options by his migration agent and by case managers, the applicant, who was in detention, was nonetheless in some way at fault or dilatory in failing to seek further advice or to immediately arrange legal representation in circumstances where he was not aware that he had a right to bring legal proceedings. In circumstances where there is no evidence to suggest that the forms required to file an application in this Court are provided to applicants in detention by Departmental or other officials the applicant’s action in using a form another asylum seeker had used is understandable. I consider that the applicant’s evidence as a whole provides a satisfactory explanation for the delay in commencing these proceedings.
In addition, as is apparent from the discussion below, the issues raised by the applicant in the further amended application cannot be said not to be arguable. Furthermore there is no prejudice to the respondent in relation to the application for an extension of time in circumstances where the case has been fully argued. The respondent would not be put to the burden and cost of additional litigation were the extension of time to be granted. I have also borne in mind the absence of any possibility of appeal to the Federal Court if the extension of time were to be refused.
I am satisfied that in the particular circumstances of this case it is in the interests of the administration of justice to extend the time for making this application up to and including 26 March 2012.
Background
Before considering the grounds in the further amended application it is appropriate to refer to the history of this matter and the Tribunal decision.
The applicant is a Sri Lankan national of Sinhalese ethnicity who left Sri Lanka by boat on 31 March 2009. He arrived on Christmas Island in April 2009. In an interview on 4 May 2009, a file note of which appears in the court book, he claimed to speak both Sinhalese and Tamil, that the boat on which he travelled had been bought in his name and that although he was the leader and co-ordinator of the voyage he did not profit from it.
The file note records that the applicant claimed to fear being harmed by the Sri Lankan government for departing illegally and transporting people (including Liberation Tigers of Tamil Eelam (LTTE) members) to Christmas Island. He claimed that he had worked for the United National Party (UNP) in the past, that he had supported the LTTE by transporting oil, weapons and batteries on two or three occasions and also that he feared being harmed by people who had provided money for the boat and journey to Australia but who did not travel.
In a statutory declaration dated 19 June 2009 provided in support of his application for a Refugee Status Assessment (RSA) the applicant elaborated on his claimed involvement with the UNP, his association with the LTTE, police interest in him, why he left Sri Lanka and his involvement in organising the voyage to Australia.
Relevantly, he claimed that he had been actively involved with and supported the UNP and that he had been assaulted by police and supporters of the party that was now in power in Sri Lanka. He claimed these supporters had cut off “most” of one of his fingers in 2005 and that he subsequently received death threats. He had then ceased to have anything significant to do with the UNP.
The applicant claimed that in his home area he had lots of Tamil friends who were members of the LTTE. In 2006 they approached him to transport goods for the LTTE. On two separate occasions in 2007 he transported goods for the LTTE. He discovered that the cargo consisted of guns, ammunition and batteries. He decided it was too dangerous to continue to do so.
The applicant claimed that a month after the second shipment he told LTTE supporters that he could not continue to help them. Shortly thereafter he was abducted while on his way to work, beaten and warned that if he did not help the LTTE he would be killed. He then returned to his home area. He also claimed that he tried to keep a low profile because if the government heard about what he had done for the LTTE he would be harmed by the government. He had heard reports that two people who had transported goods for the LTTE had been killed by supporters of the government.
The applicant claimed that in late 2007 the police came to his home and asked him to come to the police station to provide information. After two hours he was told he was not the person they were interested in and was allowed to leave. He claimed that about a month later, in early 2008, the police again came to his home to ask him to attend the police station. He claimed they asked him whether he had ever gone to a particular island as part of his work and if he had Tamil friends. He denied such friendships, being scared they would accuse him of helping the LTTE. After questioning him for half an hour the police released him.
The applicant claimed that over the next 12 months he became aware of more and more incidents in which people had been killed by the authorities and those loyal to the authorities for supporting the LTTE. He claimed he became “increasingly concerned for [his] own safety” and “was very worried that one day [he] would be abducted and killed by the authorities or their supporters” and so made plans to leave the country. He feared he would be harmed by the authorities if he returned to Sri Lanka because of his activities helping the LTTE and because he was instrumental in bringing asylum seekers, including Tamils, to Australia. He also claimed to fear harm by the LTTE for refusing to continue to assist them.
The RSA assessed the applicant as not meeting the definition of a refugee. It appears that he did not request an Independent Merits Review at that time. He was later charged with organising or facilitating the bringing or coming to Australia of a group of five or more people to whom the Migration Act applied. He was convicted and sentenced to imprisonment.
On 22 March 2011 the Department received a protection visa application lodged for the applicant by Centrecare Catholic Migrant Services. At that time the applicant was serving a prison sentence and as the holder of a criminal justice visa he was entitled to apply for a protection visa.
In a statutory declaration and statement accompanying his protection visa application the applicant claimed to fear persecution because of his work for the UNP, from the LTTE because he had refused to work for them and from the police who may have found out about the assistance he gave the LTTE. He claimed that in or around 2007 LTTE members had asked him to deliver goods for them by boat. He did so on two occasions but claimed he refused on a third occasion, and was detained and beaten by the LTTE and only released when he said he would continue to work for them. He moved to another place to stay away from them.
The applicant repeated his claims about going to the police station but being sent home as the wrong person after half an hour. He claimed that when he went to the police station on the second occasion the police asked him about Tamil friends. In addition he claimed that the police took a photograph of him and released him and that his mother had subsequently suggested that he would be in “big trouble” because as the police had his photograph they “would come and search [him] any time, as they could recognise [him]”. The applicant also claimed that in about August 2008 his work partner was taken by the “government Criminal Investigative Detective” (CID) in a white van and was later found dead. He left the area for two months.
The applicant also made a new claim that in January 2009 he was again taken to the police station, that his clothes were removed and that he was tied to a chair, beaten and kicked by drunken police. He claimed he was detained for two days, despite his family trying to secure his release. He was finally released on the representations of his cousin who knew the police well.
The applicant claimed he had been thinking of escaping Sri Lanka since about 2008 and started acting on that intention in January 2009 He spoke to a few other like-minded persons. They bought a boat and registered it in the applicant’s name.
The applicant acknowledged that he had been convicted of a people smuggling offence, but referred to the sentencing remarks of the trial judge to the effect that his departure from Sri Lanka did not involve and was not motivated by profit, but rather was to gain freedom from the problems besetting him in Sri Lanka.
The application was refused by the delegate of the first respondent who was not satisfied with the credibility of the applicant in relation to his main claims.
The applicant sought review by the Tribunal. His migration agent provided a written submission to the Tribunal dated 23 September 2011 in which it was claimed, among other things, that the applicant would face persecution based on his political involvement with the UNP and his membership of a particular social group, said to be “Sinhalese speaking Tamil language in close relation with Tamils and LTTE”. A number of supporting letters from family and others in Sri Lanka were provided. The applicant participated in a hearing conducted by video conference on 13 October 2011.
After the hearing the applicant’s adviser provided a further written submission in relation to issues raised at the hearing.
The Tribunal was informed that the applicant’s appeal against his conviction for people smuggling had been heard and judgment reserved. The adviser submitted that the applicant may face prosecution in Sri Lanka and be at risk of serving sentences of imprisonment for the same offence in two countries.
The Tribunal conducted a further hearing on 15 December 2011. The applicant was given leave to file further written submissions. In a further submission of 5 January 2012 his adviser reiterated the applicant’s claim that he would be “targeted by Sri Lanka authorities – mainly the police and the government”, and responded to issues raised at the second hearing. The adviser elaborated on the applicant’s claim to be a member of a particular social group.
The Tribunal decision
The Tribunal summarised the claims and evidence before it including the evidence given by the applicant at the two hearings, the written submissions and independent country information.
In its findings and reasons the Tribunal found that there were parts of the applicant’s evidence which it did not accept as truthful or accurate. It was of the view that the applicant showed “some propensity to embellish his claims”. The Tribunal gave as an example the fact that while the applicant’s written submission referred to transporting goods for the LTTE including ammunition, when he was asked about this at the hearing he was said to have at first denied he had seen ammunition as part of the cargo and then revised his evidence to say that the cargo might have included ammunition. The Tribunal also found that the applicant had “a propensity to be highly speculative and to build assumption upon assumption without necessarily providing, or relying on, credible evidence to support his assertions”. By way of example the Tribunal referred to the applicant’s claim that his work partner had been killed by the government based on the fact that he had been taken away in a white van and the government used such vans. In addition the applicant had speculated that his partner may have told his killers that he (the applicant) had been involved in transporting goods for the LTTE. The Tribunal found that such a proposition was “highly speculative conjecture” which was “vague and lacking in detail”. In light of these observations the Tribunal found that the applicant was “not an entirely credible witness”. It rejected aspects of his evidence as discussed in more detail in its reasons for decision.
The Tribunal summarised the applicant’s claims as a claimed fear due to his past political activities with the UNP; a fear of harm at the hands of the Sri Lankan police/government because he claimed he had transported goods for the LTTE on two occasions and would be imputed with a political opinion in support of the LTTE; a fear of what investors in the people smuggling venture might do to him if he did not repay money they had invested in the boat; and a fear of being mistreated for reasons of his people smuggling activities. The Tribunal recorded that the applicant had advised that he no longer relied on a claimed fear of harm at the hands of the LTTE or on a fear for reason of his people smuggling activities. It also recorded that the applicant accepted that as he had been prosecuted and convicted of people smuggling in Australia the principle of double jeopardy would operate in respect of any future prosecution for the same offence in Sri Lanka. Finally, the Tribunal recorded that the applicant indicated that he had further problems, including the fact that the fishing was not good where he had been working in Sri Lanka.
In respect of the applicant’s claim to fear harm due to his past involvement with the UNP, the Tribunal accepted that the applicant had assisted in a particular politician’s election campaign and possibly in others, but found on the evidence before it (including letters from witnesses) that his role was not a significant one or one that would have attracted significant attention from members of the opposing party.
The Tribunal did accept that the applicant was harassed by supporters of opposing parties for reason of such activities for the UNP politician. On the evidence before it, based on its assessment of the applicant “as a less than reliable witness who appeared prepared to misstate and embellish his claims” and the country information, the Tribunal did not accept that the applicant was detained or tortured or that the loss of his finger was due to torture at the hands of agents of the opposition party. In particular, as the Tribunal did not accept that the applicant was detained by opposition members it did not accept that his finger was amputated due to the LTTE or otherwise for reasons of his political opinion. It was “not satisfied that the applicant’s activities with the UNP, led to the applicant being harmed [by] abduction or his finger amputation” as he claimed.
The Tribunal also found that the applicant lacked knowledge about the policies of the UNP, that this was indicative of his rank and file status and that he held no profile which could warrant him being targeted by opponents. The Tribunal found that there was not a real chance the applicant would be persecuted for his political opinion in support of the UNP if he were to return to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal observed that the applicant had indicated that he would not worry so much about the LTTE because of its diminished activities or about the Freedom Party due to his limited involvement with the UNP. The Tribunal accepted that the applicant was saying that he did not hold an objective fear of serious harm from the LTTE or from the Freedom Party. It found that country information supported the conclusion that the LTTE was not as active as it had been in the past and concluded that there was not a real chance the applicant would be targeted for harm by the LTTE if he were to return to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal addressed the applicant’s claim that he feared harm at the hands of “the Sri Lankan police or government” and that he would be targeted by the police because he assisted the LTTE by transporting goods, including guns, on two occasions. The Tribunal found that the country information before it did not support the applicant’s claim that the LTTE had machine-gunned 15 to 20 people in 2007 around the time that he and his partner were approached and threatened by the LTTE. It was nonetheless prepared to accept that the applicant was approached and threatened by the LTTE and that as a result he agreed to transport goods for them and that he did so on two occasions as claimed. However the Tribunal had regard to country information about those with low-level involvement with the LTTE and found that the applicant was not a person with a high political profile, either with the UNP or as a Tamil-speaking Sinhalese. Having regard to country information about the treatment of Tamils and the situation in Sri Lanka, and considering the two instances the applicant transported goods for the LTTE, the Tribunal found that the applicant did not face a real chance of serious harm because of his association with Tamils or because he transported goods for the LTTE on two occasions.
The Tribunal then addressed the applicant’s claims that he was the “victim of police attention when he was arrested and detained without questioning”, photographed and released. The Tribunal did not accept that the photographing of a person who had been detained was an act of persecution in the circumstances. It rejected the proposition that this would point to a likelihood that the applicant faced a real chance of being targeted for serious harm for a Convention reason in the reasonably foreseeable future.
The Tribunal considered the applicant’s claim that in January 2009 he was detained by drunken police, that his clothes were removed and he was tied to a chair. The Tribunal found that such an incident indicated that “the standard of the relevant police [was] unacceptable by international standards”. However it did not accept that this incident was “associated with particular targeting of the applicant for serious harm” for a Convention reason. It had regard to country information indicating that Sri Lankan police officers were poorly paid, susceptible to corruption at lower levels and suffered from poor training which contributed to a lack of professionalism. However the Tribunal did not find on the evidence of the applicant that he was targeted by police for serious harm for a Convention reason. Rather, it accepted that the “police may have suspected that the applicant may have had some involvement with the LTTE which was an illegal organisation and that they made their inquiries and then let the applicant go”.
The Tribunal did not accept the applicant’s claim that his partner’s death could be attributed to the police or to his involvement with the applicant in transporting goods for the LTTE, finding this claim to be “highly speculative, and essentially conjecture”.
The Tribunal was not satisfied that the applicant was or was likely to be a person who would be identified or targeted by Sri Lankan police for further attention for reasons of his transport of goods for the LTTE on the evidence before it and having regard to its conclusions about his propensity to embellish relevant aspects of his evidence in this respect. The Tribunal considered it relevant that the applicant’s association with and transport of goods for the LTTE was a result of coercion at risk of harm and not based on any claim that the applicant was a supporter of the LTTE or its illegal or terrorist activities. The Tribunal was of the view that the applicant made this known to the police when he was questioned, that his response was accepted, “that the matter ended there and that the police would not be interested in the applicant as a suspected LTTE supporter or activist should he return to Sri Lanka”.
In relation to the applicant’s claim to fear persecution for reasons of being a member of a particular social group the Tribunal referred to the submission that a Sinhalese who was able to communicate in the Tamil language was a member of a particular social group. It also referred to the subsequent submission in which the characterisation of the proposed group was said to have been “fine-tuned” to “Sinhalese fishermen who are able to speak Tamil and in close association with the Tamils” and to the contention that members of this particular social group shared a common feature of being Sinhalese who spoke the Tamil language and had close association with Tamils. The Tribunal recorded the submission that the fear of persecution of the applicant was “not necessarily a fear faced by another member of the group”, but rather that it arose from his “close activity with the LTTE in transporting goods for them and the resultant death of his work partner”.
The Tribunal considered relevant case law about the characteristics of a particular social group and concluded:
Having regard to the group as proposed by the applicant, that is, Sinhalese fishermen who speak Tamil and who have close association with Tamils, and having regard to the above case law, the Tribunal rejects that this is a group which is a particular social group for the purposes of the Convention. Having considered the applicant’s arguments and submissions expressed by his representative, the Tribunal does not accept that such a group is identifiable or cognisable by a characteristic or attribute common to all members of the group. While the Tribunal accepts that all members of such a group may not have a shared fear of persecution, it does not accept that the possession of the characteristic, that is of being a Sinhalese fisherman who speaks Tamil and associates with Tamils, distinguishes the group from society at large. The Tribunal finds that the country information cited above does not suggest that simply knowing how to speak Tamil and associating with Tamils suggests the existence of a particular social group. The Tribunal therefore rejects the submission that the applicant faces a real risk of persecution for reasons of his membership of the particular social group consisting of Tamil-speaking Sinhalese who associate with Tamils.
The Tribunal concluded that the applicant’s fear of harm from “investors in his people smuggling venture” was not related to a Convention ground and that if it existed it was “motivated by a private commercial deal”. It found that information before it did not suggest that the Sri Lankan police service would withhold protection from the applicant in relation to such harm for one or more Convention reason.
The Tribunal also found there was no evidence that the difficulty faced by the applicant in earning a living was for a Convention reason.
The Tribunal then considered the applicant’s claim to fear harm in Sri Lanka for reason of his people smuggling activities (although he had advised he no longer relied on that ground). It accepted that the applicant may be the subject of interest by the authorities for reasons of his conviction in Australia as a people smuggler, but on the evidence before it was not satisfied that the applicant would be targeted for harm by the Sri Lankan authorities on a Convention ground because of his people smuggling conviction. Earlier in its decision the Tribunal had referred to the fact that no specific information was found on laws of Sri Lanka which provide for the prosecution of people smugglers. The Tribunal observed that if the applicant feared being charged, convicted and sentenced for the same crime in Sri Lanka he would be able to raise the defence of double jeopardy as such a principle applied in Sri Lanka and was enshrined in its Constitution. The Tribunal found that there was no evidence to suggest that the relevant laws in Sri Lanka would be applied to the applicant in a discriminatory way based on a Convention ground.
The Tribunal stated that it had considered all the claims and integers of the applicant’s claims, including his claim that his parents were supporters of the UNP. It found his evidence about his parents’ political activities was “vague and limited”. It was not satisfied that the applicant’s parents’ political activities gave rise to a real chance of persecution of the applicant for an imputed political opinion. Further, on the applicant’s vague evidence about the imprisonment of the politician for whom he had carried out activities, and having regard to the unreliability of parts of his evidence, the Tribunal was not satisfied that such imprisonment gave rise to a real chance of persecution of the applicant for a Convention reason.
Insofar as the applicant raised issues about the fact that the fishing was not good in Sri Lanka and that he had a family who depended on him, the Tribunal was not satisfied that the applicant was being denied the capacity to subsist or that he faced a real chance of the denial of the capacity to earn a livelihood threatening his capacity to subsist should he return to Sri Lanka. It saw no evidence to suggest that the applicant would not be able to resume work as a fisherman on return to Sri Lanka should he choose to do so.
The Tribunal also found that there was not a real chance that the applicant would be seriously harmed on return to Sri Lanka for reasons of being a failed asylum seeker, notwithstanding that he would also be returning as a convicted and sentenced people smuggler. Based on its earlier reasons it was not satisfied he would be targeted for this reason.
The Tribunal was not satisfied that the essential and significant reason for the applicant fearing harm in Sri Lanka was a Convention reason. It was not satisfied that he faced a real chance of serious harm for a Convention reason now or in the reasonably foreseeable future should he return to Sri Lanka. The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and affirmed the decision of the delegate not to grant him a protection visa.
As indicated, the applicant now relies on a further amended application filed with leave of the Court on 19 July 2012. There are five grounds in the further amended application. In submissions, counsel for the applicant advised that ground 2(a) was not pressed.
Whether the Tribunal erred in its interpretation of the term “for reason of” in the Refugees Convention
The first ground in the further amended application is that the Tribunal erred in its interpretation of the term “for reason of” in art.1A(2) of the Refugees Convention. The particulars to this ground are as follows:
(a) In finding that the applicant’s detention and mistreat[ment] in police custody in January 2009 was not Convention related, the Tribunal failed to consider why the applicant was in custody in the first place.
(b) The Tribunal erroneously considered that any mistreatment of the applicant by the police on suspicion that the applicant had some involvement with the LTTE meant that he was not being persecuted for a Convention reason.
It was submitted for the applicant that the Tribunal proceeded on the basis that it accepted that he was detained on three occasions, the third of which occurred in January 2009. The Tribunal described this as a claim that the applicant was detained by police who were drunk at the time, that his clothes were removed and that he was tied to a chair. The Tribunal accepted that the police may have suspected that the applicant may have had some involvement with the LTTE (which is an illegal organisation), but was of the view that they made their inquiries and then let the applicant go. The Tribunal did not accept that this incident was associated with the targeting of the applicant for serious harm for one or more of the Convention reasons.
The Tribunal’s discussion of this incident is relevant to both grounds one and two. The Tribunal stated at [135]:
The applicant claims that he was the victim of police attention when he was arrested and detained without questioning and then released. He claims that he was photographed before his release and that he would be identified by police because of being photographed. In this respect, the Tribunal does not find the photographing of a person who has been detained as being an act of persecution in the circumstances of this case. The Tribunal rejects a proposition that this would point to a likelihood that the applicant faces a real chance of being targeted for serious harm for a Convention ground in the reasonably foreseeable future. The applicant also claimed that on another occasion he was detained by police who were drunk at the time and that his clothes were removed and he was tied to a chair. The Tribunal finds that while such an incident indicates the standard of the relevant police to be unacceptable by international standards, the Tribunal rejects the claim by the applicant that this incident was associated with particular targeting of the applicant for serious harm for one or more of the Convention reasons. The Tribunal had regard to the country information as to the effectiveness of the Sri Lankan police where it indicates that it is a police force in which officers are poorly paid and susceptible to corruption at lower levels, and that is (sic) suffers from poor training which has contributed to lack of professionalism, however, the Tribunal does not find that on the evidence of the applicant that he was targeted by police for serious harm for one or more of the Convention grounds. The Tribunal accepts that the police may have suspected that the applicant may have had some involvement with the LTTE which is an illegal organisation and that they made their inquiries and then let the applicant go.
It was submitted that it was relevant that the Tribunal also rejected the applicant’s claim that his partner’s death was attributable to the police or to the partner’s involvement in transporting goods for the LTTE. The Tribunal did not accept that the applicant was likely to be identified or targeted by the police for further attention for reasons of his transport of goods for the LTTE. It considered it relevant that he claimed he did so as a result of coercion, not as a supporter. Relevantly, the Tribunal was of the view that the applicant made this known to the police when he was questioned, that his response was accepted and the matter ended there. On this basis it found that the police would not be interested in the applicant as a suspected LTTE supporter or activist should he return to Sri Lanka.
It was submitted that the Tribunal’s finding about the police questioning the applicant must relate to the second occasion on which the applicant was detained, because the applicant’s evidence in the interview with the delegate was that he was not asked any questions on the third occasion. In response to the question, “What questions did they ask you?” he was recorded as stating “No questions. They were drunk”. It was submitted that on the applicant’s evidence the only time he was asked questions in detention was on the second occasion.
In these circumstances counsel for the applicant contended that it was difficult to reconcile the Tribunal’s finding that the applicant’s transport of goods for the LTTE would not result in persecution with its acceptance that he was detained by police on a third occasion and that they may have suspected that he had some involvement with the LTTE. It was submitted that the Tribunal left unanswered the question of why the police detained the applicant on the third occasion and that this constituted jurisdictional error.
The reason why the applicant was in custody was said to be important because the reason for detention may carry over to the reason for mistreatment in detention. Reliance was placed on Paramananthan and Another v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 39 and 43; [1998] FCA 1693 in which the Federal Court considered a decision of the Tribunal which had accepted that young Tamil males had been taken into police custody because they were young Tamil males. The Tribunal had also found that because the police in Sri Lanka were indiscriminately brutal, the persecution the applicants experienced in detention was not for a Convention reason, but rather was indiscriminate cruelty. Wilcox J found, at 39, that it was not open to the Tribunal to reject the claim of persecution on the basis that it was merely “indiscriminate cruelty” because:
…the only reason the two applicants for protection came to be in police or army custody was because of their ethnicity and perceived political opinion.
While Wilcox J did not suggest that it was an act of persecution within the meaning of the Refugees Convention for the police or army “to select people for questioning about the LTTE on the basis of their perceived Tamil ethnicity”, in circumstances where the LTTE was a Tamil nationalist organisation, or to detain them for that purpose for a reasonable time, his Honour continued (at 39):
… the fact that people have been selected for detention on the basis of their ethnicity or perceived political opinion makes it important for a government to ensure there is no abuse of the power of detention. The people who are at risk of “indiscriminate cruelty” have been selected on a basis mentioned in the Convention.
Reference was made to the remarks of McHugh J in Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225 at 259; [1997] HCA 4 that:
… where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution.
In Paramananthan Wilcox J stated (at 39 – 40) that:
… it was legally incorrect for the Tribunal to reject the claims of [the applicants] on the ground that the mistreatment they had suffered amounted to "indiscriminate cruelty" falling short of "persecution". In each case, the Tribunal should have entered upon the questions whether there was a causal connection between the cruelty the applicants had suffered and their Tamil ethnicity and/or perceived sympathy for the LTTE and, if so, whether the cruelty was something the Sri Lankan government tolerated or was unable to control.
It was submitted that there may well be a connection between the reason a person was taken into custody and the reason he or she suffered persecution in custody and that as the Tribunal had failed to address and make findings on why the applicant was detained it could not lawfully address the nexus between the mistreatment suffered by the applicant in custody and the reason for that mistreatment and that this impacted specifically and directly on its finding that the applicant was of no further interest to the police..
Reliance was also placed on the remarks of Lindgren J in Paramananthan in support of the proposition that separating the issue of arrest from the issue of whether mistreatment constituted persecution was not, at least in the way the Tribunal implemented it, permissible. Lindgren J made the point (at 43):
Let it be assumed that these refugee-claimants have a well-founded fear that they would, upon return to Sri Lanka, be detained, and, during detention, be tortured, not because their tormentors wished to persecute young Tamil males from LTTE-controlled areas, but because they derived perverse pleasure from their mistreatment of detainees (whether Sinhalese or Tamil) or because they wished to extract bribes from the friends and relatives of the detainees (whether Sinhalese or Tamil). In such a case, "the authorities" regarded as a whole, would be engaged in persecution for a Convention reason, in my opinion.
His Honour was of the view that in such circumstances “the initial arrest and detention would be on account of membership of a particular social group” if the mistreatment was not an “isolated and unforeseeable act of an individual member of the security forces, but was sufficiently common for it to be said that there was a well-founded fear of its occurrence”. He continued (at 43):
In such a case, the authorities' otherwise permissible initial act of arrest and detention for questioning and pending completion of inquiries would be coloured by the well-founded fear of the mistreatment to follow. The authorities would be committing the refugee-claimants to a detention during which there was a well-founded fear they would in fact be mistreated.
(Also see Merkel J at 68-69).
The applicant submitted that where the Tribunal accepted that a person was being persecuted or mistreated, it could not conclude that a person was not persecuted for a Convention reason without determining why the person was persecuted. Even if this contention could not be made generally, it was said to be relevant in this case because there was some suspicion of LTTE collaboration on the part of the applicant. It was submitted that had the Tribunal made a connection between its finding that the police may have suspected the applicant to have had some involvement with the LTTE and the third detention, then the subsequent findings that the applicant did not face a real chance of serious harm because of his association with Tamils or because of having transported goods for the LTTE on two occasions could not stand.
The applicant also submitted that insofar as the Tribunal found that the police may have suspected that the applicant had some involvement with the LTTE and that any treatment the applicant endured in police custody during the third detention was justified by the fact that the LTTE was an illegal organisation, this involved what was said to be a misinterpretation of the Convention nexus, in that mistreatment for assisting an illegal organisation could nonetheless amount to persecution.
The first respondent submitted that neither the particulars to ground one or the applicant’s submissions explained how the Tribunal could be said to have erred in its interpretation of the term “for reason of” in art.1A(2) of the Refugees Convention.
Insofar as this ground takes issue with the Tribunal’s conclusion that the incident where the applicant was tied to the chair by the police was not persecution for a Convention reason, it was submitted that a finding as to whether particular conduct was “motivated by a Convention reason” was a factual issue for the Tribunal (see Ramirez v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514; [2000] FCA 1000 at [38] and [43], and SZDJQ & SZDJR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 533 at [38]). It was pointed out that the Court cannot review the merits of the Tribunal’s decision and that there is no error of law in the Tribunal making a wrong finding of fact (see Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [20] and cases cited therein). It was also contended that it could not be said that the Tribunal was applying some general principle that mistreatment because of arrest on suspicion of LTTE involvement could not be Convention persecution.
While this ground refers to an error in interpretation of the term “for reason of”, the first particular involves a contention that the Tribunal failed to consider and to make findings about why the applicant was detained on the third occasion in January 2009. A failure to make findings is not of itself a jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30). While such a failure may reveal some other legal error, such as a failure to have regard to relevant considerations, this is not the nature of the jurisdictional error alleged in ground one.
Insofar as this ground does implicitly raise a contention that the Tribunal failed to deal with a claim, it is not made out. The Tribunal dealt with the applicant’s claim to fear harm from the Sri Lankan authorities because of his suspected involvement with the LTTE.
The applicant never suggested that he knew why he was arrested in January 2009. On the contrary, in response to the delegate’s question about why he was detained in January 2009 he responded “Don’t know” and then explained the circumstances in which he was released. There was no factual basis or necessity for the Tribunal to make a specific separate finding on that particular issue in order to address all the integers of the applicant’s claimed fear of the authorities because of his suspected involvement with the LTTE.
In these circumstances it was not necessary for the Tribunal to make an express finding as to the reasons for the detention. It sufficiently addressed this issue in its acceptance that the police may have suspected that the applicant had some involvement with an illegal organisation (the LTTE), but made their inquiries and let him go. It also dealt with the abuse the applicant suffered when detained and mistreated by drunken police, but found that while this reflected “unacceptable” professional standards on the part of the police, “this incident” (which clearly included both the detention and the subsequent mistreatment) was not “associated with particular targeting of the applicant for serious harm for one or more of the Convention reasons”.
Paramananthan does not assist the applicant. In that case what was in issue was whether the Tribunal had erred in determining that the applicant’s fear was not “well-founded” (Wilcox J at 31). It was in that context that the Tribunal was said to have erred in failing to make factual findings “in respect of all the issues on which its decision turned” (based on s.430 of the Migration Act and cf Yusuf) and “in treating “indiscriminate cruelty” to a predominantly Tamil pool of prisoners as necessarily falling outside the concept of persecution for [a Convention reason]” (Wilcox J at 31).
In contrast to Paramananthan, the Tribunal in this case did not proceed on the basis that indiscriminate harm to a detainee who may have been suspected of LTTE involvement or mistreatment for assisting an illegal organisation could never amount to persecution for a Convention reason. Moreover, while there was no explicit finding about the reason for the third detention, the Tribunal found that the risk of further detention and harm did not rise to the level of a “real chance” in circumstances where the applicant would not be regarded by the police as a suspected LTTE supporter or activist should he return to Sri Lanka. Paramananthan does not purport to establish any principle of law such as to give rise to an obligation on the Tribunal to make a finding as to the reason for the third detention.
In circumstances where, for a number of reasons, the Tribunal rejected the claim that the applicant faced a real chance of persecution as a suspected LTTE supporter or activist should he return to Sri Lanka, it did not have to make an explicit finding about the reason for detention as a prerequisite to its lack of satisfaction.
Ground one is not made out.
Whether no evidence for a finding
The second ground in the further amended application is that “the Tribunal made findings essential to the outcome of the case in the complete absence of evidence”. At the hearing counsel for the applicant advised that particular (a) was not pressed. Particular (b) is as follows:
If paragraph 135 of the Tribunal’s decision can be read as a finding that the Sri Lankan police detain and beat people randomly (that is without specific reason) there was no evidence for that finding.
Paragraph [135] of the Tribunal decision is set out at [62] above. It was acknowledged that paragraph [135] of the Tribunal reasons for decision was not entirely clear, but submitted that if it could be read as involving a finding that the police picked the applicant up randomly off the street and detained and mistreated him, there was no evidence at all for a finding that the Sri Lankan police detained and beat people randomly. The applicant contended that while the Tribunal seemed to have accepted that the police were alleged to have engaged in widespread mistreatment of detainees there was no evidence that they picked people randomly off the street and mistreated them and that such a finding was crucial in that it diverted attention from the question of why the applicant was detained on the third occasion.
The applicant submitted that the finding of a crucial fact in the complete absence of evidence was jurisdictional error, consistent with the approach taken in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [19] (also see SZJRU v Minister for Immigration and Citizenship and Another (2009) 108 ALD 515; [2009] FCA 315). It was submitted that this would have been a critical aspect of the case because in the absence of such a fact the Tribunal would have had to decide why the applicant was detained and persecuted.
However, as the first respondent submitted, the Tribunal did not make a finding that the police “detain and beat people randomly”. I am not satisfied that it is a fair reading of its decision to conclude that in paragraph [135] of the decision it implicitly made such a finding. Rather than making a general finding about the conduct of the police in detaining people in Sri Lanka, the Tribunal was addressing the particular incident of which the applicant complained. It is the case that in addressing the applicant’s claim about what occurred after he was detained in January 2009 the Tribunal accepted that this incident involved drunken police who removed his clothes and tied him to a chair and indicated that “the standard of the relevant police [was] unacceptable by international standards”. It referred to country information indicating that Sri Lankan police force officers were “poorly paid and susceptible to corruption at lower levels” and “suffer[ed] from poor training [that] contributed to lack of professionalism”. However the Tribunal made this finding in the context of considering whether the conduct of the police indicated that this particular incident was associated with targeting of the applicant for serious harm for a Convention reason.
This does not, however, give rise to an inference that the Tribunal made a finding that Sri Lankan police “detain and beat people randomly”, particularly given that it accepted that the police may have suspected that the applicant may have had some involvement with the LTTE, but that they then made their inquiries and let him go.
Ground two is not made out.
Whether the Tribunal erred in relation to the characterisation of particular social group
Ground three in the further amended application is as follows:
The Tribunal erred in failing to make findings as to whether the applicant had a well founded fear of persecution for reason of membership of a “particular social group” consisting of Sinhalese people who speak Tamil language and who are in close relations with Tamils and the LTTE.
Particulars:
(a)The Tribunal merely addressed the position of Tamil speaking Sinhalese who associate with Tamils.
The applicant pointed out that in his adviser’s submission of 23 September 2011 it was contended that he faced persecution on the Convention basis of “his membership of a particular social group – being a Sinhalese speaking Tamil language in close relation with Tamils and LTTE” (emphasis added).
It was acknowledged that the particular social group was put in different ways at different times, but submitted that this was a very succinct and plain submission. Reference was also made to what was said to be an expansion of this submission in the written submission of 20 October 2011. The adviser referred to remarks of the High Court in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 in relation to the meaning of a particular social group and continued:
The applicant being a Sinhalese is able to communicate in the Tamil language. This ability has enabled him to have close association with the Tamils. So he is considered as a member of a particular social group. Members of this particular social group share the communal feature of being a Sinhalese who speaks Tamil language and has close association with the Tamils. This character is not a shared fear of persecution, but has distinguished the group from society at large. We submit that the applicant is a member of a particular social group. His fear of persecution by the Sri Lankan police is not necessarily and will not be a fear faced by another member of the group. His fear has arisen from his close activity with the LTTE in transporting goods for them and the resultant death of his work partner ... .
There was said to be another submission essentially to the same effect dated 5 January 2012 that was closer to the initial submission, insofar as the adviser stated:
That ‘particular social group’ principle may better be illustrated by finetuning to a smaller group of Sinhalese fishermen who are able to speak Tamil and in close association with the Tamils – possibly including the LTTE.
The applicant contended that the Tribunal did not address the particular social group posited in his adviser’s submission of 23 September 2011, but rather addressed whether he belonged to another group, being “Singhalese (sic) fishermen who speak Tamil and have a close association with Tamils”.
It was submitted that in proceeding in this manner the Tribunal had failed to address the particular social group posited by the applicant, which extended to Sinhalese who speak Tamil and have close “relations” not only with Tamils, but also with the LTTE. It was contended that by failing to address a claim of persecution based on such a clearly articulated particular social group the Tribunal had committed jurisdictional error in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24] and [95].
However, as submitted for the first respondent, while a number of formulations of the particular social group to which the applicant was said to belong were suggested by his adviser over time, the Tribunal was entitled in this case to address the claims as put in the applicant’s last submission of 5 January 2012 which sought to clarify the particular social group said to be in issue.
In the submission of 5 January 2012 the adviser repeated the part of the submission of 20 October 2011 set out at [93] above, but then continued:
Other people probably not having this linguistic ability to beg mercy were killed on the spot by the LTTE, whilst the Claimant being able to speak ‘Tamil’ and communicate with the LTTE members could survive. He agreed to render assistance in exchange of their mercy not to kill him. It may not be only confined to fishermen. That ‘particular social group’ principle may better be illustrated by finetuning to a smaller group of Sinhalese fishermen who are able to speak Tamil and in close association with the Tamils – possibly including the LTTE. Such a group of Sinhalese fishermen, as a social group, able to communicate with and are in close association with the Tamils distinguish them from society at large.
In other words, somewhat confusingly, while the adviser initially suggested that the particular social group “may not be only confined to fishermen”, he then proceeded to “finetun[e]” the posited group to “a smaller group of Sinhalese fishermen who are able to speak Tamil and in close association with the Tamils – possibly including the LTTE”. The common factor was explained on the basis that “Such a group of Sinhalese fishermen, as a social group, are able to communicate with and are in close association with the Tamils distinguish them from society at large (sic)”.
This proposed social group plainly overtook and replaced those suggested by the applicant at earlier stages, as is apparent from the reference to “finetuning” in the adviser’s submission. The adviser did not suggest that there were a number of distinct particular social groups of which the applicant was a member, but rather that he belonged to a particular social group of Sinhalese fishermen able to speak Tamil and in close association with the Tamils, possibly (that is, not necessarily) including the LTTE.
The suggestion that an LTTE association was an essential feature of the social group which was not addressed by the Tribunal cannot stand in light of the unequivocal statement by the adviser in the identification of the posited social group as “Sinhalese fishermen who are able to speak Tamil and in close association with Tamils”. Contrary to any contention to this effect for the applicant, it is apparent from the manner in which the social group was posited that it was not being suggested that it was an essential element of the social group that the members of the social group were in close association with the LTTE, notwithstanding that it is apparent that, as LTTE members are Tamils, the members of such a social group may have an association with Tamils who happen to be members of the LTTE.
Furthermore in its findings and reasons the Tribunal not only had regard to the group ultimately proposed by the applicant, being Sinhalese fishermen who speak Tamil and who have close association with Tamils, but also considered the wider particular social group proposed in the submission of 20 October 2011 and mentioned as an initial possibility in the submission of 5 January 2012. Having rejected the claim that Sinhalese fishermen able to speak Tamil and in close association with the Tamils constituted a particular social group for the purposes of the Convention (on the basis that such a group was not “identifiable or cognisable by a characteristic or attribute common to all members of the group”) the Tribunal also considered but rejected the submission that the applicant faced a real risk of persecution for reasons of his membership of a particular social group consisting of “Tamil speaking Sinhalese who associate with Tamils”. This finding had regard to the emphasis in the adviser’s submission of 5 January 2012 on the ability of Tamil-speaking Sinhalese to communicate with and be in close association with the Tamils as a factor that distinguished them from society at large.
The Tribunal’s reasoning that independent country information did not indicate that simply knowing how to speak Tamil and associating with Tamils suggested the existence of a particular social group and its consequential rejection of the claim that the applicant faced a real risk of persecution for reason of his membership of a particular social group consisting of Tamil speaking Sinhalese who associate with Tamils is sufficiently broad to encompass the social groups previously asserted by the applicant, including Sinhalese people who speak Tamil and are in close relation with Tamils (including Tamils who are LTTE).
Ground three is not made out.
Whether the Tribunal erred in failing to address the applicant’s fear of retribution at the hands of supporters of the government
Ground four in the further amended application is that “[t]he Tribunal erred in failing to address the applicant’s fear of retribution at the hands of supporters of the government for helping suspected LTTE people escape the country”.
Counsel for the applicant pointed to the claims made by the applicant in his statutory declaration of 19 June 2009. The applicant had claimed that after he refused to help the LTTE and was beaten and warned that he would be killed if he did not help them, he had returned to his home area. He claimed that he “tried to keep a low profile” because he knew that “if the government heard about what [he] had done [he] would be seriously harmed by the government”. Relevantly, he also stated “I had heard reports that 2 people who had also transported goods for the LTTE had been killed by supporters by [sic] the government” (emphasis added). In that context he continued:
Over the next 12 months I became aware of more and more incidents where people were killed by the authorities and those who are loyal to the authorities for supporting the LTTE. These incidents caused me to become increasingly concerned for my own safety. I was very worried that one day I would be abducted and killed by the authorities or their supporters.
Counsel for the applicant submitted that while the Tribunal dealt with the applicant’s claims in relation to the Sri Lankan authorities, it did not deal with his claims in relation to supporters of the authorities and that this was a distinct aspect of his claims. The Tribunal’s alleged failure to consider the applicant’s fear that those loyal to the government may take extra judicial retribution against him for assisting the LTTE was said to amount to a failure to address an integer of the applicant’s claim in the manner considered in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42].
However, as the first respondent contended, the submission that the applicant claimed to fear “retribution at the hands of supporters of the government for helping LTTE people escape the country” as asserted in ground four in the further amended application does not fairly reflect the claims that the applicant put to the Tribunal. First, in his statutory declaration of 19 June 2009 the applicant claimed that he would be harmed as a perceived supporter of the LTTE because he had transported goods for the LTTE (not because he helped suspected LTTE people escape the country). The applicant made this claim in the context of explaining why he left Sri Lanka. He went on to describe his involvement in organising the voyage to Australia and then stated (twice) that he feared he would be harmed by “the authorities” because of his “activities” helping the LTTE, as well as by the LTTE for refusing to continue to help them. The applicant did not expressly claim that he had any fear of harm in the future from supporters of the government or the authorities for helping suspected LTTE people leave Sri Lanka. Considered in context, the reference he made to people being killed by supporters of the government was clearly to people who had transported goods for the LTTE (not those who helped suspected LTTE people escape the country).
It is the case that in a record of interview apparently conducted on 5 June 2009 the applicant claimed to fear being “killed by the government” because of his involvement in organising the travel to Australia. He also claimed that the people in his village had learnt that he helped bring LTTE people to Christmas Island and that “they will therefore not allow him to return home”. However he expressed his fear of serious harm constituting persecution as a fear that “the government will kill him because of his work with the LTTE and engaging in the illegal activity of transporting people” to Christmas Island. The RSA characterised the applicant’s fear in this respect as a fear of “prosecution and not persecution”, and not for a Convention reason. His separate fear of harm from people who were left off the boat was not a fear of harm from supporters of the government.
The applicant’s advisers made no claim of the nature asserted in ground four in their written submissions of 18 March 2011. Nor did the applicant in his statement of 20 January 2011 or in his statutory declaration of 24 January 2011. There is no record of such a claim being made in his interview with the delegate on 20 May 2011. In that context his fear in respect of helping the LTTE was said to have been expressed as a fear of the government.
There is no evidence of any claim of a fear of supporters of the government having been made to the Tribunal by the applicant or his adviser (as distinct from a fear of the government and the authorities).
Moreover, and critically, the Tribunal recorded that at the first Tribunal hearing, in response to a request for more detail on who the applicant claimed would actually harm him upon return to Sri Lanka, “[h]e replied that he does not have any problems with anyone else, but he fears the government because he has helped the LTTE”. This was an express denial of a fear of anyone other than the government. In that context the applicant went on to discuss his claimed fear that his work partner had been shot by the government for helping the LTTE, and to state that he knew of two other people who had been killed. He also claimed that if he returned the government would “consider that he [had] been involved in people smuggling and that he could be harmed because of that”.
Furthermore, in the post-hearing written submission of 5 January 2012 the applicant’s adviser stated that:
[The applicant] reaffirmed his claims at this interview. He worries that if he goes back to Sri Lanka he will be targeted by the Sri Lanka authorities – mainly the police and the government.
The applicant did not at any point before the Tribunal identify any particular group of government supporters from whom he feared harm for helping suspected LTTE people escape the country.
In these circumstances it cannot be said that there was a substantial, clearly articulated argument relying on established facts raised by the applicant to fear harm in the manner contended for in ground four of the further amended application. He did not make such an express claim in his statutory declaration of 19 June 2009 or elsewhere. The applicant expressly denied at the Tribunal hearing fearing harm for any reason from anyone other than the government. This was confirmed by his adviser after the hearing.
Nor am I satisfied that a claim of the kind referred to in this ground can be said to have arisen clearly from the material before the Tribunal such that it had to be addressed by the Tribunal in the manner considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55]–[68]. This is not a case in which such a claim was raised by the evidence but misunderstood or misconstrued by the Tribunal (see NABE at [63]). As stated in NABE at [68]:
A judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
Insofar as the applicant contended that a claim of a fear of future persecution by supporters of the government for helping suspected LTTE people escape the country emerged from his claims about past fears of the authorities or their supporters for transporting goods for the LTTE, having regard to the actual claim he made (in relation to being killed for supporting the LTTE) and the fact that the applicant later clarified that his fear was a fear of the government, I am not satisfied that a claim of the nature contended for in ground four emerged clearly from the materials before the Tribunal.
Ground four is not made out.
Whether jurisdictional error in relation to double jeopardy finding
Ground five in the further amended application is as follows:
The errors of law made by the District Court of Western Australia in the course of convicting the applicant of people smuggling offences caused the Tribunal to commit a jurisdictional error.
Particulars:
(a)The conviction was overturned on appeal [the further amended application contains a citation of the case in relation to the applicant in the Western Australian Court of Appeal].
(b)The Commonwealth Director of Public Prosecutions has decided not to further prosecute the applicant.
(c)The Tribunal therefore erred in finding that the applicant could raise a defense (sic) of “double jeopardy” to any prosecution of him for an offence in Sri Lanka, including a political offence in the nature of assisting LTTE suspects to escape the country.
At the time of the Tribunal decision the applicant had been convicted of people smuggling offences and judgment had been reserved in his appeal. The Tribunal decision was dated 9 January 2012. On 24 January 2012 the appeal was allowed, the conviction set aside and a new trial ordered. The Commonwealth Director of Public Prosecutions subsequently discontinued the criminal proceedings against the applicant.
Ground five takes issue with what is said to be the Tribunal’s finding that the applicant could raise a defence of double jeopardy to any prosecution for an offence in Sri Lanka, having regard to the fact that his conviction has now been overturned on appeal and the Commonwealth Director of Public Prosecutions has decided not to further prosecute him.
It was contended that while the Tribunal’s finding about the applicant’s conviction was a finding of fact, the Court of Appeal’s orders had the effect of rendering non-existent the conviction by the District Court. Hence it was submitted that as a matter of law the conviction was taken never to have existed so that the Tribunal relied on a fact that did not exist.
It was submitted that the Tribunal proceeded on an entirely erroneous basis which led it to fail to address the question of whether the applicant might be prosecuted for what amounted to a political offence in Sri Lanka and whether the law under which he may be so prosecuted is or would be one of general application (as opposed to one aimed at people whose real or perceived political opinion was one of support for the LTTE or the Tamil separatist cause).
Mr Karp was not able to point to any authority to support the propositions that formed the basis for ground five. He was given the opportunity to make additional submissions after the hearing identifying any relevant authorities and addressing Jadwan Pty Ltd v Secretary Department of Health & Aged Care [2003] FCAFC 288 which was referred to in oral submissions for the first respondent.
Counsel for the first respondent had submitted that this ground confused issues of fact with issues of law and that there was no authority that the Tribunal could not have regard to factual circumstances, including a conviction, as at the time of its decision, even if the conviction was subsequently set aside. Reference was made to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 and the discussion of that case in Jadwan in support of the proposition that the fact that a decision was affected by error would not necessarily result in the decision having no effect at all. It was said that such authority did not support the proposition that the setting aside of the applicant’s conviction after the Tribunal decision had the effect contended for by the applicant.
In post-hearing written submissions the applicant accepted that Bhardwaj was distinguishable and pointed out that Jadwan related to whether a decision set aside under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was void ab initio.
The applicant submitted that the setting aside of a conviction had the result that the conviction was void ab initio for the purposes of an administrative decision, that it was relevant that the decision-maker was a public official who had no personal or financial stake in the maintenance of the judgment upon which he or she relied in the formulation of a decision and reasons for decision, and that there was no statute maintaining the fact of a conviction that had been set aside for the purposes of a review by the Tribunal. It was contended that maintaining the effect of a conviction aside after an administrative decision was to permit the administrator to rely on such a conviction and that there was no practical reason for maintaining that conviction.
On this basis it was submitted that the Tribunal had relied on a fact, being the applicant’s conviction for people smuggling, that did not exist and that hence that it erred in the manner contended for in ground five of the further amended application. It was, however, acknowledged that there was no authority directly in point. Rather, reliance was placed on the general principle that where a conviction has been quashed, a person cannot be considered ever to have been convicted as stated by the majority of the High Court in Commissioner for Railways v Cavanough (1935) 53 CLR 220 at 224 and 227 (and also see Lynch v Hargrave [1971] VR 99).
In Cavanough Rich, Dixon, Evatt and McTiernan JJ pointed out at 224 that the effect of a reversal of a conviction or quashing it or setting it aside on appeal was that the conviction was void ab initio. However, as the majority also stated in Cavanough at 224:
Acts done according to the exigency of a judicial order afterwards reversed are protected: they are “acts done in the execution of justice, which are compulsive” (Dr. Drury’s Case). And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For “collateral acts executory are barred, but not collateral acts executed” (Dr. Drury’s Case).
It was acknowledged for the applicant that the authorities indicated that the setting aside of a judgment obtained in a civil case would not necessarily result in acts done in pursuance of the judgment being undone. However it was suggested that this was in large part because the rights of third parties who had acted in reliance upon the decision may be affected. It was also submitted that this would depend on the applicable legislation and that the authorities, in particular Cavanough and the joint judgment in Wilde v Australian Trade Equipment Co Pty Ltd (1981) 145 CLR 590 in relation to the validity of registration of a charge effected in reliance on a court order, indicated that if the effect of a criminal conviction could be undone, it should be undone.
Mr Karp referred to WAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 896 in which Cavanough was cited in the context of migration law. The Federal Court held that Cavanough did not stand for the proposition that the setting aside of a Tribunal decision had the effect that the process before that Tribunal was void ab initio. Again this is not the issue presently before the court.
First I note that in his submissions of 5 January 2012 the applicant’s adviser abandoned his claim to fear persecution and imprisonment in Sri Lanka because he had assisted Sri Lankans to seek asylum in Australia. Insofar as he now seeks to reactivate that claim that does not establish jurisdictional error on the part of the Tribunal.
Nonetheless, the Tribunal considered the applicant’s claim to fear harm if he returned to Sri Lanka for reason of his people smuggling activities as follows:
The applicant claims he fears that he will suffer harm if he returns to Sri Lanka for reasons of his people smuggling activities. The Tribunal accepts that the applicant may be the subject of interest by Sri Lankan authorities upon his return to that country for reasons of his conviction in Australia as a people smuggler. However, on the evidence before it, the Tribunal is not satisfied that the applicant would be targeted for harm by the Sri Lankan authorities for a Convention ground because of his people smuggling conviction. The Tribunal is satisfied that if the applicant fears double jeopardy in the sense of being charged, convicted, and sentenced for the same crime in Sri Lanka that such a matter is properly the subject of the laws of double jeopardy and that the applicant will be able to raise the defence of double jeopardy to such a charge if laid against him. The Tribunal is satisfied that the country information cited above indicates that the principle of double (sic) applies in Sri Lanka and is enshrined in the Constitution of that country. There is no evidence before the Tribunal to suggest that the relevant laws in Sri Lanka would be applied to the applicant is (sic) a discriminatory way based on a Convention ground.
Thus, in considering the applicant’s claim to fear harm because of his people smuggling “activities” the Tribunal accepted that the applicant may be subject to “interest” from the authorities for reason of his conviction in Australia as a people smuggler. However, critically, it was not satisfied that he would be targeted for harm by the authorities for a Convention reason because of his conviction. Such finding is not said to be affected by the posited jurisdictional error or the fact that the conviction has now been set aside. It is the case that the Tribunal was satisfied that if the applicant feared double jeopardy in the sense of being charged, convicted and sentenced for the same crime in Sri Lanka, such a matter was properly the subject of Sri Lankan laws of double jeopardy and that he would be able to raise a defence to such a charge. However, relevantly, the Tribunal addressed the issue of whether a fear of legal action in Sri Lanka for people smuggling activities gave rise to a fear of persecution for a Convention reason in its finding that there was no evidence before it to suggest that the relevant laws in Sri Lanka would be applied to the applicant in a discriminatory way based on a Convention ground. In other words there was nothing to suggest that any laws of Sri Lanka which provide for prosecution of people smugglers were not laws of general application or that such laws would be applied to the applicant in a discriminatory way such as to provide a Convention nexus.
It is not in dispute that as the applicant’s conviction for people smuggling offences has been set aside the applicant cannot be considered to have been convicted (at least for the purposes of Australian law). However the applicant has not established that in making these findings the Tribunal fell into jurisdictional error in having regard to the factual circumstances (including the conviction) at the time of its decision because thereafter the conviction was set aside. The Tribunal made a finding about the applicant’s claims to fear that he may be the subject of interest by Sri Lankan authorities for reasons of his conviction in Australia as a people smuggler based on the material before it at the time of its decision. Even if it could be said that the Tribunal made an error of fact in so doing, in that its finding was premised on there having been a conviction, that would not of itself constitute jurisdictional error.
Although the conviction has been set aside, and even if the applicant could now not raise a defence of double jeopardy to any prosecution in Sri Lanka, that does not establish that the Tribunal erred in a manner that constituted jurisdictional error. Contrary to the situations considered in the authorities relied on by the applicant, this is not a case in which the Tribunal “acted on” a conviction that was later set aside. Rather it made findings about whether the applicant had a well-founded fear of persecution based on facts in existence at the time of its decision. Moreover what was in issue was whether the applicant had a well-founded fear of persecution for a Convention reason arising out of a risk of prosecution. Even if the Tribunal could be said to be in error in its discussion of double jeopardy, its reasoning in this respect was not the basis for its finding about an absence of a Convention reason for any fear of harm for reason of the applicant’s people smuggling activities. The Tribunal’s lack of satisfaction that the applicant would suffer harm for a Convention reason was not based on the finding about the availability of the defence of double jeopardy, but rather on the absence of evidence that Sri Lankan laws in relation to people smuggling would be applied to the applicant in a discriminatory way for a Convention reason.
I am not persuaded that the fact that the applicant’s conviction was set aside after the Tribunal’s decision has given rise to an error in the exercise of its jurisdiction on the part of the Tribunal.
Ground five is not made out.
As none of the grounds relied on by the applicant have been established the application must be dismissed.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 14 September 2012
19
2