SZSRR v Minister for Immigration
[2013] FCCA 1712
•25 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSRR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1712 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to assess all the integers to the Applicant’s claims or to apply the correct test in relation to the complementary protection criterion for a protection visa – whether the Tribunal made an error of law in its findings in relation to independent country information. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 91R |
| Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Minister for Immigration and Citizenship v MZYLE(No 2) [2011] FCA 1467 Minister for Immigration and Citizenship v MZYLE [2011] FCA 1210 MZYLE v Minister for Immigration & Anor [2011] FMCA 589 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 NABE v Minister for Immigration & Multicultural &Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Rhesa Shipping Co SA v Edmunds and another (the Popi M) [1985] 2 All ER 712 SZQNJ v Minister for Immigration & Anor [2012] FMCA 815 SZSFK v Minister for Immigration & Anor [2013] FCCA 7 SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 |
| Applicant: | SZSRR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 581 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 13 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Thomas McLoughlin Solicitor |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent made on 22 February 2013 in Tribunal case number 1216053.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 1 October 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 581 of 2013
| SZSRR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 22 February 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Sri Lanka, came to Australia as an irregular maritime arrival on 11 April 2012. He participated in an entry interview on 10 and 13 May 2012. As recorded in the interview report, he claimed that until 2010 he was a supporter of the People’s United Front (the PUF) and that he had been a youth leader in his village. However he claimed that prior to the 2010 presidential election he changed his allegiance to and joined Democratic United Front (the DUF), demonstrated against the PUF-led government and supported Mr Fonseka, the president of the DUF. He claimed that he was harassed by a particular local PUF member of Parliament and that after the election he was taken into custody by people in a white van who he believe represented the PUF government. He claimed he was detained for one day and beaten up and told to rejoin the PUF if he wanted to live in his village.
The Applicant also claimed that groups he believed were linked to the PUF came to the tea factory owned by the government party where he worked, that he was “interdicted” several times and that they had him sacked.
The Applicant claimed that the Criminal Investigation Department (CID) had threatened his wife several times since he left Sri Lanka and that he feared that if he returned they would kill him.
After the Minister exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (the Act) to allow the Applicant to make a protection visa application, he lodged an application on 30 June 2012. In a supporting statutory declaration of 30 June 2012 the Applicant claimed he left Sri Lanka owing to political problems he was experiencing “due to [his] involvement with the Democratic United National (sic) Front (DUNF)”. He claimed that for many years he and his family had worked for the Sri Lankan government, the United People’s Freedom Alliance (UPFA) and that he became an active member and supporter of the UPFA in about 1997. He claimed that he worked as a youth league leader for the council in a particular area, conducted “postering” campaigns, assisted the UPFA in organising rallies and conducted “pocket meetings” at village level for elections held between 1997 and 2010.
The Applicant claimed that in about January 2010 (prior to the January 2010 presidential elections) he joined the DUNF, which was running in opposition to the UPFA, because of problems prevalent in the Sri Lankan government at the time. He claimed he then assisted the DUNF in the run up to the 2010 presidential elections in the same capacity and role in which he had previously assisted the UPFA. He claimed he was critical of the government in pocket meetings.
The Applicant claimed that after the UPFA won the 2010 presidential elections, he was shot at by persons he suspected were members of the UPFA; that in mid-2010 he was harassed and threatened at his workplace by UPFA members; and that in about June 2010 he was captured and detained overnight by members of the UPFA who told him he must re-join the UPFA. He claimed that between June 2010 and February 2011 he received threatening telephone calls from the UPFA asking him if he had considered rejoining the UPFA and that he also received a call from a politician who lived in his village who asked him why he had ceased working with the UPFA. The Applicant claimed that in February 2011 he was suspended from his work on the basis of “a false accusation”. He believed this was orchestrated by members of the UPFA as the business was owned by the UPFA. He also claimed that on three separate occasions in early 2012 he was harassed by UPFA members at his workplace and that in March 2012 he was again threatened by the UPFA and told that he “deserved to be killed”.
The Applicant claimed to fear that as he had no intention of rejoining the UPFA he would be killed or otherwise seriously harmed if he remained in Sri Lanka. He claimed to fear harm “from the UPFA, the Sri Lankan authorities and their associated paramilitary groups” for reason of his political opinion (as he was a leader for the UPFA from 1997 until 2010 and due to his decision to support the DUNF in the 2010 presidential elections). He claimed that in May 2012 his wife was questioned by officers from the CID regarding his whereabouts and that this made him sure he was still of adverse interest to the UPFA and the Sri Lankan authorities.
He also claimed to fear harm as a failed asylum seeker. He claimed that as he feared the authorities, they would not protect him.
The Applicant provided a number of documents in support of his application, including documents dated 6 and 8 May 2012 certifying that he was a supporter and an active member of the United National Party (the UNP) during the last Presidential election and subsequent elections.
The Applicant and his representative attended an interview with the delegate on 13 July 2012. The delegate recorded that the Applicant discussed his claims to fear the UPFA. Relevantly, his advisor was said to have submitted that the Applicant feared harm from the Sri Lankan authorities and UPFA on account of his anti-government political opinion (as he was a supporter of the DUNF and opposed to the UPFA) and that he also feared harm from the authorities as a failed asylum seeker.
The Applicant’s representative provided detailed written submissions to the Department dated 10 August 2012. It was submitted, among other things, that country information confirmed that “political dissidents – such as the Applicant – [w]ere at risk of persecution in Sri Lanka”, that “supporters of the … UNP … [were] specifically targeted by the country’s regime against political dissent” and that UNP supporters were subject to “ongoing harassment” by the authorities and the government. It was contended that the cited country information:
…confirms that political dissidents in Sri Lanka – especially persons supporting the UNP, Sri Lanka’s largest opposition party – continue to be at significant risk of harm in Sri Lanka. The Applicant, as an individual who has publicly displayed his support for the UNP, continues to be at risk owing to his political opinion, in the event he is returned to Sri Lanka.
The advisor also addressed the Applicant’s claim to fear harm as a failed Sri Lankan asylum seeker in light of what were said to be risk factors applicable to him, as well as the issue of relocation.
On 1 October 2012, a delegate of the First Respondent refused the application for a protection visa. The Applicant sought review by the Tribunal. He was invited to a hearing on 30 November 2012.
On 29 November 2012, the Applicant’s representative provided a detailed written submission to the Tribunal outlining and elaborating on the Applicant’s claims to fear persecution on the basis of political opinion and as a failed asylum seeker, and taking issue with aspects of the delegate’s decision in light of independent country information. The submission also addressed the complementary protection criterion in s.36(2)(aa) of the Act by reference to the circumstances of the Applicant’s departure from Sri Lanka and his return as a failed asylum seeker.
The Applicant participated in the Tribunal hearing by way of video conference. A transcript of the hearing is in evidence before the Court as an annexure to the affidavit of Susan Archer affirmed on 31 May 2013.
The Tribunal Decision
In its decision of 22 February 2013 the Tribunal outlined in detail the claims made by the Applicant at various times. It referred to the documents and submissions provided in support of his application and outlined the evidence given at the Tribunal hearing.
In its findings and reasons the Tribunal summarised the Applicant’s claims as a claim to fear persecution in Sri Lanka “because of his political opinion in favour of the UNP and his activist support for it” and a claim to fear persecution as a member of a particular social group consisting of failed asylum seekers.
Under the heading “Political Opinion” the Tribunal summarised the Applicant’s claims that his family members were long-term supporters of the UPFA, that he had been an active supporter from 1997 and about his activities for the UPFA. It recorded his claim that he switched his support to the rival UNP in about January 2010 and carried out activities he had previously carried out for the UPFA for the UNP (with local youth, organising “pocket” meetings and distributing posters and being critical of the government).
The Tribunal stated that it had “a number of doubts as to the credibility of these claims”. It found that “a number of [the Applicant’s] claims about his political allegiances [w]ere marked by significant confusion over the parties said to have been involved”. In that context the Tribunal referred to the fact that in his statutory declaration, in submissions to the Department and the Tribunal and at the hearing, the Applicant had claimed that his family members had supported the UPFA for many years and that he began actively supporting it in 1997. This claim was said to be directly inconsistent with information before the Tribunal indicating that the UPFA was a coalition of parties, led by the Sri Lankan Freedom Party (SLFP), which was established in 2004. The Tribunal had regard to the fact that when this was put to the Applicant at the hearing, he had offered a “generally confused response”. It found it clear that the Applicant did not know that the previous coalition party was the People’s Alliance (the PA). It also had regard to the fact that the Applicant then suggested he had previously been a member of the SLFP, which was the main constituent party of both the PA and the UPFA coalition, and that this was a claim that he had not previously raised, despite its obvious relevance for his account of his political activities.
The Tribunal also had regard to the fact that in his statutory declaration the Applicant had claimed he became a member of the DUNF (sic) in 2010 and had maintained this claim until the advisor’s written submission of 29 November 2012 in which it was stated that the party he joined was the UNP. The Tribunal acknowledged that the earlier references to the DUNF had been ascribed by the Applicant’s representative to a “misunderstanding, partly due to interpreting issues”. However when this matter was raised at the hearing, the Applicant had confirmed that he had joined the UNP but had also claimed that this was the lead party in coalition with the DUNF, that his activities for the UNP were in support of the DUNF and that the DUNF was a coalition of one main and three small parties which supported Mr Fonseka’s candidature in the 2010 election. The Tribunal had regard to the fact that this claim was directly inconsistent with country information indicating that the coalition headed by the UNP in 2010 (and thereafter) was the United National Front (UNF), whereas the DUNF was a separate and minor party which was part of the UPFA in 2004, joined the UNF in December 2009 but left it in February 2010 to join another grouping, the Democratic National Alliance (DNA), to contest the general elections on behalf of Mr Fonseka and his allies.
The Tribunal found that these aspects of the Applicant’s account gave “a clear impression of uncertainty and ignorance about the political parties and coalitions in Sri Lanka which he claims to have supported”. The Tribunal was not satisfied that the Applicant’s evidence in this respect was “consistent with his claims, or that it reflect[ed] any specialised knowledge or insight into political issues which might reflect lengthy experience as a political activist in Sri Lanka”.
The Tribunal found it difficult to believe that the Applicant would have encountered no problems as a popular youth leader in explaining to his followers the reasons for his switch from supporting the UPFA to the UNP. It was of the impression that the Applicant had not given this question any particular thought. This added to the Tribunal’s view that the Applicant’s claims to have been a political activist and leader were not to be believed.
The Tribunal also found it difficult to accept that the UPFA (or the SLFP) would plausibly have believed they could force the Applicant to rejoin their ranks through threats and violence, or even if this were possible, that they would be able to rely on and trust someone who had left them, attacked them in public and been induced to return only under threat of death. It was not satisfied that the Applicant’s explanation that they needed his talent and influence as a youth leader made this claim more plausible. The Tribunal noted that the advisor’s suggestion that UPFA’s main motivation was simply to neutralise the Applicant’s influence had not been suggested by the Applicant himself and found that if this had been the UPFA’s main aim, they would reasonably be expected to have concentrated on threats rather than wasting time with efforts to have the Applicant return. The Tribunal was not satisfied as to the truth of the Applicant’s claim to have been abducted in mid-2010 and threatened with death if he did not rejoin the UPFA or that there were other incidents in which such demands were put to him.
The Tribunal found it implausible that, despite having enraged the UPFA and the authorities, the Applicant would have been able to escape further physical harm or allowed to continue in his employment for a period of nearly two years before he left Sri Lanka. It found unconvincing his various explanations for his ability to avoid harm or further action in this period.
In light of all of these considerations, the Tribunal was not satisfied as to the credibility of the Applicant’s claims to have been a “political activist and youth leader” either for the SLFP/UPFA or, after January 2010, for the UNP. It accepted that he “may have supported one or both of these parties, possibly in the chronological order he claims, to the extent of voting for them” and was prepared to accept “that he may have joined the UNP in 2010”. However, the Tribunal was “not satisfied that [the Applicant’s] political involvement can have extended any further than this so that he was seen as an activist, whether among youths or more widely in the community”.
It was not satisfied the Applicant had “any political profile for the UNP and against the SLFP/UPFA or the government”. Nor was it satisfied there was any reason to believe he was ever imputed with such a political opinion. In addition, the Tribunal was not satisfied the Applicant ever suffered harm for such a reason in Sri Lanka, in particular the harm he claimed to have suffered. Further, the Tribunal was not satisfied as to the credibility of the Applicant’s claim that after he left Sri Lanka his wife was questioned by the CID regarding his whereabouts because he was of adverse interest to the UPFA.
As the Tribunal was not satisfied the Applicant had a real or imputed political opinion in favour of the UNP and against the UPFA or the government in the past or that he had ever suffered harm for such a reason. It was not satisfied there was any reason to believe he would face a real chance of harm for such a reason if he were to return as there was nothing to indicate the situation had changed since he left Sri Lanka.
The Tribunal stated that it had reached this conclusion taking into account the letters submitted by the Applicant which were said to testify to his level of political activism for the UNP. Notwithstanding country information indicating that false or fraudulent documents were easily obtained in Sri Lanka, the Tribunal was prepared to accept the letters were authentic, in the sense that they were written by or at the direction of the named authors. However it had regard to the fact that all three letters gave the impression of having been prepared as support for the Applicant’s claims and provided little or no circumstantial detail about his activities or the harm he allegedly suffered. The Tribunal found that the impression created by the “notably generalised nature of their remarks” was that the writers were simply wishing to help the Applicant in his protection visa application by giving him references along lines suggested to them.
The Tribunal addressed the fact that at the hearing the Applicant had suggested a new reason for fearing harm on account of his political opinion, based on the fact that he had left Sri Lanka without informing his numerous followers. He claimed they had become very angry with him and had changed their allegiance, once more joining the local Minister who was in the UPFA government. He claimed he had previously mentioned this claim to his advisor. The Tribunal was not satisfied this claim was plausible and did not accept that it was true. It was not satisfied that the Applicant would be at any risk of harm from such a source in Sri Lanka.
Taking these considerations together, the Tribunal was not satisfied that significant weight could be placed on the three letters as evidence that the Applicant was a political activist on behalf of the UNP or that he suffered any harm as a consequence.
The Tribunal considered the Applicant’s claims to be an imputed LTTE supporter on the basis of the circumstances of his departure from Sri Lanka in a boat in which he claimed he was the only Sinhalese passenger among Tamils from the north. He claimed these circumstances would give rise to a suspicion that he had helped Tamil LTTE members or supporters to escape Sri Lanka. The Tribunal was not satisfied that such a claim was plausible having regard to the Applicant’s Sinhalese ethnicity and Buddhist religion. It also had regard to his evidence to the effect that such an allegation would arise only in the context of the alleged targeting of him by the UPFA or the authorities because of his real or imputed adverse political opinion. As the Tribunal was not satisfied the Applicant ever had such a real or imputed adverse political opinion or was harmed for such a reason or would face harm for such a reason, it did not accept that he would be falsely accused of supporting the LTTE in these circumstances.
The Tribunal then addressed the Applicant’s claims to fear persecution as a member of the particular social group of failed asylum seekers. It accepted that it was likely the Applicant would be readily identifiable by the Sri Lankan authorities as a person who left unlawfully and was a failed asylum seeker. However it was not satisfied that he would suffer serious harm by reason of his membership of the particular social group of failed asylum seekers who had left Sri Lanka illegally. In reaching such a conclusion the Tribunal had regard to various items of country information (as discussed further below in relation to ground 3 in the amended application), including information submitted by the Applicant’s advisor in support of the claim that the Applicant would be arrested and subjected to lengthy detention or imprisonment and would suffer severe forms of mistreatment, including torture, while in custody. It also considered information from other sources in relation to Sri Lanka’s treatment of returned asylum seekers. Having considered what it described as “differing and inconsistent information”, it found more reliable and preferred the reporting from British, Australian, Canadian, Danish and other official sources. On the basis of the information before it the Tribunal was not satisfied that Sri Lankan citizens, whether or not they were Tamils, were subjected to serious harm on arrival in Sri Lanka or thereafter simply because they had sought asylum overseas, because they departed in breach of Sri Lanka’s immigration laws, or because they were members of a particular social group consisting of such persons.
As the Tribunal was not satisfied the Applicant had ever come to the adverse attention of the Sri Lankan authorities because of an adverse political opinion or for any other reason or that he would be suspected of having connections with the LTTE, it did not accept that on return to Sri Lanka he would be required to do more than attend one or more routine interviews at the airport, possibly extending over a number of hours, before being allowed to leave. The Tribunal was not satisfied that the Applicant would suffer serious harm by reason of his membership of the particular social group of failed asylum seekers who left the country illegally and was not satisfied that his lack of a passport or travel documentation would place him at greater risk of harm in this context. Given that the Applicant’s evidence that his national identity card was in Sri Lanka, the Tribunal was of the view that it was reasonable to assume that it was available to him and hence that he would not face any difficulty on return to Sri Lanka through lack of a national identity card.
The Tribunal was not satisfied the Applicant had a well-founded fear of persecution should he return to Sri Lanka now or in the reasonably foreseeable future for any Convention reason.
Under the heading “Complementary Protection” the Tribunal referred (at [97]) to the advisor’s submission that the Applicant met this criterion in particular because if he were to be returned to Sri Lanka “he would be exposed to severe mistreatment on being detained as a failed asylum seeker”.
In paragraph 98 the Tribunal referred to the fact that “[a]s noted”, on the information before it it was not satisfied as to the credibility of the Applicant’s claims to face harm on return to Sri Lanka because of his membership of the particular social group of failed asylum seekers who had departed illegally. The Tribunal found that it was not satisfied that the Applicant “does, in fact, face any likelihood of significant or serious harm – whether that is assessed against the standards of a real chance or a real risk – for such reasons” and concluded that “[o]n the basis of this finding” it was not satisfied that there were substantial grounds to believe that, as a necessary and foreseeable consequence of the Applicant being removed to Sri Lanka, there would be a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act.
The Tribunal repeated that it was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention, and that therefore he did not meet the criterion in s.36(2)(a) of the Act. It continued at [100]:
Having concluded that the Applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
The Applicant sought review by application filed in this court on 22 March 2013. He now relies on an amended application filed on 5 June 2013. There are four grounds in the amended application, but ground 4 was not pressed.
Whether the Tribunal failed to assess the full integers of the applicant’s claims
Ground 1 of the Amended Application is that the Tribunal failed to assess the “full integers” of the Applicant’s claims in the context of the complementary protection criterion in s.36(2)(aa) of the Act.
The particulars to this ground are that the Tribunal failed to consider the Applicant’s claims to fear harm from the UPFA, the Sri Lankan authorities and their associated paramilitary groups under the complementary protection provisions.
The Applicant submitted that in its consideration of complementary protection at paragraphs 97 to 98 of the decision, the Tribunal confined its analysis of the Applicant’s claims to the issue of whether he would satisfy this criterion on the basis that he claimed to fear harm on return to Sri Lanka as a failed asylum seeker.
Paragraphs 97 and 98 of the decision are as follows:
The adviser submits that the Applicant would satisfy the criterion for protection under complementary protection arrangements in particular because if he were to be returned to Sri Lanka he would be exposed to severe mistreatment on being detained as a failed asylum seeker.
As noted, on the information before the Tribunal, I am not satisfied as to the credibility of the Applicant’s claims to face harm on return to Sri Lanka because of his membership of a particular social group consisting of failed asylum seekers who have departed illegally. I am not satisfied that he does, in fact, face any likelihood of significant or serious harm – whether that is assessed against the standards of a real chance or of a real risk – for such reasons. On the basis of this finding, I am not satisfied that there are substantial grounds to believe that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer significant harm in terms of s36(2)(aa) of the Act.
The Applicant submitted that the Tribunal had confined its consideration to the expressly articulated claims referred to by the Applicant’s representative in the written submission of 29 November 2012 and that it had failed to consider a claim that arose “squarely” on the material and evidence before it that there was a real risk that the Applicant would suffer significant harm because of his involvement in the UNP. Counsel for the Applicant pointed out that, in contrast, the delegate had considered whether the Applicant faced an ongoing risk of harm from his involvement with the DUNF in the context of addressing the complementary protection criterion.
It was submitted for the Applicant that a claim to fear such harm had been squarely raised and that, in any event, even if the Applicant had not expressly articulated such a claim, in accordance with the approach taken in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 the Tribunal was obliged to consider such a claim because it was raised by the evidence and material before it. The Applicant also contended that even if a claim had been put in Refugees Convention terms the Tribunal should consider such claim under the complementary protection provisions if the material before it raised such a claim.
Moreover, it was submitted that it could not be said that the Tribunal’s findings in relation to the Applicant’s claim to fear persecution for reason of his political opinion rejected all aspects of such claim so that it did not have to be considered in the context of the complementary protection criterion. It was pointed out that the Tribunal had accepted that the Applicant may have supported the political parties he claimed to have supported to the extent of voting for them and also that he may have joined the UNP in 2010. The Tribunal accepted that he may have been a supporter and member of the UNP, notwithstanding that the Tribunal was not satisfied that the extent of his political involvement was such that he would be seen as an activist or the holder of any political profile for the UNP and against the SLFP/UPFA or the government. It was contended that this was not a case in which the factual basis of the suggested claim under the complementary protection criterion had been rejected by the Tribunal. Furthermore, it was pointed out that in considering complementary protection the Tribunal had not addressed this claim by reference to its earlier findings of fact.
The First Respondent submitted that the contention that the Tribunal had failed to consider the Applicant’s claims to fear harm from the UPFA and the Sri Lankan authorities or paramilitary groups in the context of the complementary protection criterion was not a fair reading of the Tribunal’s decision and was contrary to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272); [1996] HCA 6;
It was acknowledged that under the heading “Complementary Protection” the Tribunal had (at paragraphs 97 to 98) focused on the Applicant’s claim to fear harm as a failed asylum seeker. However it was submitted that the case as detailed in the context of complementary protection in the advisor’s submission of 29 November 2012 was that the Applicant’s fear related to his claim as a failed asylum seeker. It was submitted that the fact that the Tribunal had addressed explicitly the issue of a fear of significant harm as a failed asylum seeker in paragraphs 97 to 98 was explicable due to the way the case was put. However the First Respondent contended that on a fair reading of the Tribunal decision it was apparent from what was described as the “more global language” the Tribunal used in paragraph 100 of its decision (set out at [38] above), read together with paragraphs 97 and 98, that the Tribunal had also rejected any possibility that the Applicant could engage the complementary protection provision for reason of his claims relating to his political opinion or imputed political opinion.
In addition, the First Respondent submitted that as the Tribunal had already found that the Applicant did not have a well-founded fear of serious harm from the UPFA or the Sri Lankan authorities because of his real or imputed political opinion, there was no basis for it to find a real risk of “significant harm” as defined in s.36(2A) of the Act from the UPFA or the Sri Lankan authorities. It was contended that as the factual basis for the claim in this respect had been rejected by the Tribunal, it could not succeed under the complementary protection provisions (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774) and that it could be inferred in this case that the Tribunal had in mind its previous factual findings in relation to the asserted claim when addressing complementary protection.
It was pointed out that at paragraphs 75 and 76 of the Tribunal’s reasons for decision, the Tribunal had raised a number of issues in relation to the Applicant’s credibility. It was contended that the Tribunal had comprehensively rejected his claim to have been harmed in the past by the Sri Lankan authorities or that there would be any risk of harm from them in the future and submitted that these findings could not be read as limited to a finding that he did not have a well-founded fear of harm from these bodies for reason of his political opinion. Counsel for the First Respondent contended that the findings in the context of the Tribunal’s consideration of the Refugees Convention could not fairly be read as leaving open the possibility that the Applicant may face serious harm from the UPFA or the Sri Lankan authorities for some non-Convention reason.
The First Respondent submitted that the “comprehensive” rejection of the Applicant’s claims in this respect, combined with the way his case was put under the complementary protection provisions (as limited to harm as a failed asylum seeker) meant that on a fair reading the Tribunal had implicitly rejected any fear of harm to the Applicant under the complementary protection provisions on the basis of his claims to have been harmed by political parties in the past or that he would be harmed by them in the future. There was said to be no factual basis for a conclusion that the Applicant could face a real risk of significant harm, given the Tribunal’s earlier factual findings.
It is the case that in his submission of 29 November 2011 in relation to complementary protection the Applicant’s representative focused on the risk to the Applicant as a failed asylum seeker. Despite this, I am satisfied that a claim that the Applicant feared significant harm from the Sri Lankan authorities, the UPFA or political factions in Sri Lanka arose “squarely” on the material before the Tribunal in the sense considered in NABE at [58] – [61] and SZSGA such that it had to be considered by the Tribunal in the context of the complementary protection criterion. Indeed, this did not appear to be disputed by the First Respondent.
It is however relevant to consider the nature and extent of the claim in this respect. In his statutory declaration of 30 June 2012 the Applicant claimed to fear harm from the Sri Lankan authorities based on his involvement in and activities with the opposition DUNF from 2010, his involvement in demonstrations prior to the 2010 presidential election campaign and his support for the candidature of Mr Fonseka.
The Applicant claimed, among other things, that he joined the DUNF in January 2010 and that he assisted it in the same capacity and way that he had previously assisted the UPFA, in particular by distributing posters and organising meetings. He claimed he criticised the Sri Lankan President and government practices in pocket meetings. Relevantly, he claimed to fear that if he returned to Sri Lanka he would be killed or otherwise seriously harmed and that he feared harm “from the UPFA, the Sri Lankan authorities, and their associated paramilitary groups”. He claimed to fear he would be harmed for reasons of his political opinion, that he was a past leader of the UPFA and that he had been personally targeted and harmed due to his decision to support the DUNF in the 2010 presidential elections. He claimed that he was still a person of adverse interest to the UPFA and the Sri Lankan authorities. He also claimed to fear harm as a failed asylum seeker.
The delegate recorded that in his interview the Applicant claimed that after he moved from supporting the UPFA to supporting the DUNF in 2010 he encountered problems, including threats from the government asking him to return to the UPFA. He also claimed he worked against the government. He explained his involvement in pocket meetings. His advisor was recorded as submitting that the Applicant feared harm from Sri Lankan authorities and the UPFA on account of his anti-government political opinion and because he was a supporter of the DUNF and opposed to the UPFA in which he had previously been a politically active youth worker. He also claimed he had publicly criticised the President of Sri Lanka. In addition he claimed that failed asylum seekers were handed to the CID and police and taken into custody and that as he had already come to the adverse attention of the authorities it was evident that he would suffer “significant harm” if returned to Sri Lanka.
The Applicant provided a letter said to be from the opposition Leader of the Southern Provincial Council attesting to his active membership of the UNP during the last presidential election and thereafter in which it was suggested that he would face various forms of harassment, life threatening pressures, deprivations and disasters. He also provided a supporting letter from a Member of Parliament certifying him to be a party member and supporter of the UNP.
In a detailed written submission of 10 August 2012 the Applicant’s representative expressly raised claims by the Applicant to fear harm or mistreatment as a political dissident in Sri Lanka and as a failed Sri Lankan asylum seeker. As counsel for the Applicant pointed out, in that context the advisor referred to items of independent country information said to indicate that “supporters” of the UNP – which was Sri Lanka’s leading opposition party – were specifically targeted by the country’s regime against political dissent and also to information regarding the ongoing harassment of UNP supporters in Sri Lanka by the authorities and the government. In this context the representative had submitted (relevant to the complementary protection criterion) that the country information cited confirmed that political dissidents, especially those supporting the UNP, Sri Lanka’s largest opposition party continued to be at significant risk of harm in Sri Lanka as well as claiming that the applicant, as an individual who had “publicly displayed his support for the UNP”, continued to be at risk owing to his political opinion in the event he was returned to Sri Lanka.
As the delegate recognised in his decision, the Applicant’s claims to fear the authorities, members of the UPFA or political factions supporting the President were based on his purported anti-government political opinion and his support for the DUNF. The delegate expressly considered whether he was satisfied there was a real risk the Applicant would suffer significant harm by the Sri Lankan authorities, UPFA or political factions supporting the President for the purposes of s.36(2)(aa) of the Act. The delegate’s findings in relation to complementary protection were as follows:
In Part B – Assessment of Protection Obligations under the Refugees Convention – I found that the applicant did not have a real chance of being persecuted as his claims were not well-founded. The reasons for this finding were that I was not satisfied the applicant would be of adverse interest to the Sri Lankan authorities, UPFA or political factions supporting the current ruling party in Sri Lanka. I also find the available country information and the claims represented by the applicant do not support the claims that he would suffer serious harm.
The criterion contained in s 36(2)(a) requires satisfaction that an applicant is owed protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of their removal, there is a real risk that a non citizen will suffer significant harm. While I consider the applicant may have some involvement with the DUNF, I am not satisfied he faces an ongoing risk of harm emanating from this. I have relied on the same evidence to find that there is not a real risk of the applicant facing serious harm by the Sri Lankan authorities, UPFA or political factions supporting the current ruling party in Sri Lanka.
Accordingly, I am satisfied there is not a real risk that the claimant will suffer significant harm by the Sri Lankan authorities, UPFA or political factions supporting President Rajapaksa (for the purposes of paragraph 36(2)(aa) of the Act).
In view of the finding that the claimed fear is not well-founded, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of his removal, there is a real risk that the applicant will suffer significant harm.
As indicated, in the written submissions of 29 November 2012 to the Tribunal the Applicant’s advisor focused on the Applicant’s fear of persecution on account of his political opinion and membership of a particular social group and his claim to complementary protection as a failed asylum seeker, but I am not satisfied that the Applicant abandoned his claim to complementary protection on the basis that he feared harm from the authorities, the UPFA or political factions supporting the President as a supporter of the UNP or the DUNF, as well as on the basis of his claimed involvement as a political activist and youth leader (see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42] per Allsop J).
Relevantly, in addressing the claim of a fear of persecution on the basis of political opinion, the advisor referred to evidence of people being targeted on the basis of their “affiliation” with the UNP and also to evidence of violence and abductions targeting UNP “supporters” in the context of describing the Applicant’s public change of his political allegiance. The advisor suggested that a significant political profile was not a prerequisite to experiencing persecution on account of political opinion. There was said to be compelling evidence that low profile UNP political supporters had been and continued to be targeted for political purposes by agents of the state.
Moreover, before raising the Applicant’s claims to complementary protection as a failed asylum seeker, the advisor criticised the tests applied by the delegate in assessing the Applicant’s claims under the complementary protection provisions and his use of findings in relation to the level of risk under the Refugees Convention criterion in relation to the complementary protection claim to fear significant harm from the authorities, the UPFA or political factions supporting the ruling party.
There is nothing in the Tribunal’s account of the hearing to suggest that the Applicant abandoned any part of his UNP political activist, youth leader or supporter aspects of his complementary protection claims.
I am satisfied the material before the Tribunal clearly raised a claim by the Applicant to fear harm from the Sri Lankan authorities and the UPFA and political factions supporting the government as a supporter of the UNP opposition party as well as based on his claimed involvement in and activities for the UNP. Hence it was necessary for the Tribunal to address the Applicant’s claims to fear harm from the UPFA and Sri Lankan authorities or paramilitary groups when considering the complementary protection criterion.
What is in issue is whether the Tribunal adequately considered such claims. There is no express reference in the paragraphs under the heading “Complementary protection” to any aspect of the Applicant’s claims other than the claim to fear harm on the basis of being a failed asylum seeker.
It is clear from the that the language used by the Tribunal in paragraphs 97 and 98 that its consideration was confined to the Applicant’s claims to face harm on return to Sri Lanka because of his membership of the particular social group of failed asylum seekers who had departed Sri Lanka illegally. The Tribunal stated that it was not satisfied that the Applicant faced any likelihood of significant or serious harm “for such reasons” and that “on the basis of this finding” the Tribunal was not satisfied there were substantial grounds to believe that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act. Read fairly, such findings are clearly confined to the claimed fear or likelihood of significant harm to the Applicant as a failed asylum seeker who had departed Sri Lanka illegally.
I do not accept that the Tribunal sufficiently addressed the aspect of the Applicant’s claim relied on in ground 1 by a combination of paragraphs 97, 98 and 100 of its reasons for decision. Paragraph 100 of the Tribunal’s reasons is merely to the effect that having concluded the Applicant did not meet the Refugees Convention criterion, the Tribunal had considered the alternative criterion in s.36(2)(aa) (the complementary protection criterion) and was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the complementary protection criterion. This is clearly a reference to its consideration in paragraphs 97 and 98.
I am not persuaded that reading the Tribunal reasons for decision fairly and as a whole such conclusion can be seen as necessarily including and addressing the Applicant’s claims to fear harm from the UPFA and the Sri Lankan authorities or paramilitary groups by reason of his support for or involvement in the UNP. It may well have been open to the Tribunal to have considered this claim in the context of complementary protection by reference to its earlier findings of fact in relation to the claims based on political opinion, but it did not do so. In contrast to the position in SZSGA at [55] – [57] the Tribunal did not specifically address the complementary protection claim referred to in ground 1 of the amended application by reference to the language of the applicable Migration Act provisions and by reference to its particular findings of fact.
Moreover, even if the Tribunal’s complementary protection conclusion is to be read in light of the earlier Refugees Convention findings as the Applicant submitted, the Applicant’s claim based on being a “supporter” of the UNP survived the Tribunal’s adverse findings in respect of his claims to have been a political activist or youth leader or to have had a political profile for the UNP. The Tribunal accepted that the Applicant may have supported the UNP and joined it in 2010, although it was not satisfied his political involvement extended further such that he was seen as an activist or had a political profile or a real or imputed political opinion for the UNP and against the SLFP/UPFA or the government.
Reading the Tribunal decision fairly and as a whole, I am not satisfied that the Tribunal implicitly rejected any real risk of significant harm to the Applicant under the complementary protection provisions based on its findings of fact in relation to the Refugees Convention criterion (cf SZSGA at [15]). The Tribunal did not specifically address the Applicant’s complementary protection claims based on being involved in and a supporter of the UNP at all, let alone by reference to its earlier findings of fact. Nor has it been established that the part of the Applicant’s complementary protection claim based on being a mere supporter of the UNP could not survive the earlier findings. Thus it cannot be said that it was unnecessary for the Tribunal to address this part of the claim in the context of considering complementary protection.
Having regard to the Tribunal decision as a whole, I am satisfied that the Tribunal failed to consider the Applicant’s claims to fear harm from the UPFA, the Sri Lankan authorities and their associated paramilitary groups under the complementary protection provision and hence that the Tribunal fell into jurisdictional error in the manner contended for in ground 1 of the amended application. The matter should be remitted to the Tribunal for reconsideration according to law. I have however also considered the other grounds relied on by the Applicant.
The Correct Test Issue
Ground 2 in the amended application is that the Tribunal “failed to apply the correct test under complementary protection at law”. The particulars to this ground are that the Tribunal:
conflated the tests relating to sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) in their Findings and Reasons at paragraphs [97] and [98] of the decision, erroneously implying a requirement to identify the motivation for the infliction of harm under the complementary protection provisions.
The Applicant took issue with the Tribunal’s consideration of his claims to fear harm as a failed asylum seeker who departed Sri Lanka illegally in the context of the complementary protection criterion in s.36(2)(aa) of the Act. It was submitted that the findings at paragraph 98 effectively imported issues of credit relating to the Applicant’s claim that he had a well-founded fear of persecution within the meaning of the Refugees Convention into the test for complementary protection which is contingent upon the Minister being satisfied that the Applicant would face significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka. The Applicant submitted that the Tribunal confined its findings in relation to complementary protection to the motivation of those who would persecute the Applicant if he were returned to Sri Lanka by use of the words “for such reasons”. This was said to have “conflated” the tests under complementary protection and the requirement of a well-founded fear of persecution for a Convention reason under the Refugees Convention.
In addition, counsel for the Applicant submitted that by relying on unspecified earlier findings described simply as “as noted”, the Tribunal had imported the “requirement of persecutory acts” under s.91R of the Act into the test for complementary protection, contrary to the language of s.36(2)(aa) of the Act. Thus, insofar as this “transposed” the Tribunal’s earlier findings under the heading “Particular Social Group” into the consideration of complementary protection, it was contended that the Tribunal had misconstrued the Applicant’s complementary protection claim based on being a failed asylum seeker. This was said to be tantamount to a failure to consider a claim under the complementary protection provisions.
Reliance was placed by the Applicant on the reasoning of Judge Driver in SZSFK v Minister for Immigration & Anor [2013] FCCA 7 at [97] as follows:
It was open to the Reviewer to deal with the complementary protection criterion in a self contained way in part of his report. He chose, at [72] to emphasise what he saw as the “non systematic or targeted” threat to the applicant. This could have been a reference to s.91R(1)(c) of the Migration Act (which the parties agree is not relevant to the complementary protection criterion) or it could have been a general reference intended to quantify the risk. The use of the word “systematic” is problematic. Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not. The use of language drawn from an irrelevant provision of the Migration Act at least creates confusion and may point to reviewable legal error. Further, the reliance by the Reviewer at [75] on unspecified “findings set out above” is particularly problematic. On its face, it appears to be a reference to all of the Reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion (such as a finding of a lack of Refugees Convention nexus with harm suffered by the applicant).
The fact that the Tribunal had referred to both significant and serious harm in the context of considering the complementary protection provision was also said to support the proposition that it had conflated such concepts. In essence, it was submitted that the Tribunal conflated the tests for the Refugees Convention and complementary protection criteria in a manner which suggested that because the Applicant did not meet the Refugees Convention test, therefore he did not meet the complementary protection criterion.
This ground is not made out. As the First Respondent submitted, the Tribunal made it clear that it was applying the real chance test (subsequently held to be the correct test in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [246] per Lander and Gordon JJ, [297] per Besanko and Jagot JJ and [342] per Flick J). There is nothing in the Tribunal’s reasons in relation to complementary protection to suggest it was importing some requirement of the Refugees Convention test such as Convention motivation or the requirements of s.91R of the Act into the test for complementary protection.
The Tribunal’s reference (at 98) to the Applicant’s claim to fear harm because of his membership of a particular social group of failed asylum seekers is, on a fair reading of its reasons for decision, simply an identification of the factual basis for the Applicant’s claim considered earlier in the Tribunal decision. It is not such as to indicate that the Tribunal was proceeding on the basis that if a real risk of significant harm as a failed asylum seeker was made out, there would also be a requirement of a Convention nexus in the context of the complementary protection criterion.
It is clear from paragraphs 97– 98 of the Tribunal decision considered together that the Tribunal properly identified and did not misconstrue this claim. Insofar as the Applicant relied on SZSFK, it is notable that in that case in considering particular claims under the Refugees Convention the reviewer had accepted that certain past events, including apprehension of the applicant and beatings, had occurred. However the reviewer rejected the claim on the basis that, among other things, he did not accept that these events had occurred for a Convention reason. These claims were also relied on in the context of the complementary protection criterion. It was in that context that Judge Driver pointed out at [91] that the reason for the harm was irrelevant to the consideration required under s.36(2)(aa) of the Act, before finding that, given the manner in which the reviewer had approached his task in relation to the Refugees Convention, it was not open to the reviewer to simply say that the complementary protection claim was rejected for the same reasons. Rather it was said to be necessary for the reviewer to engage with the language of s.36(2)(aa) and to consider the evidence relevant to that provision.
However, in contrast to SZSFK, this is not a case in which the Tribunal accepted that certain past harm had occurred such that it was necessary to consider the possibility of such harm in the future for a non-Convention reason in the context of the complementary protection criterion.
Moreover, in its earlier findings in the context of considering the Refugees Convention claim outlined above, the Tribunal had not accepted that the Applicant would suffer harm for reason of being a failed asylum seeker who had left Sri Lanka illegally. Having regard to the nature of its findings, it was open to the Tribunal to outline the claim under complementary protection that the Applicant would be exposed to severe mistreatment on being detained as a failed asylum seeker and then to refer to the fact that it was not satisfied as to the credibility of the Applicant’s claims “to face harm” on return to Sri Lanka as a failed asylum seeker. This was a reference to the fact that it was not satisfied that Sri Lankans were subjected to serious harm on arrival in Sri Lanka or subsequently simply because they had sought asylum overseas or because they departed in breach of Sri Lanka’s emigration laws. The Tribunal expressly considered the position of the Applicant and did not accept that on return he would be required to do more than attend one or more routine interviews at the airport before being allowed to leave. Having thus rejected the factual basis for any complementary protection claim based on being a failed asylum seeker it was open to the Tribunal to refer to such findings in its discussion on the complementary protection criterion. As in SZSGA at [54] that claim could not succeed in light of such findings.
The Tribunal was not satisfied that the Applicant faced any likelihood of significant or serious harm whether that was assessed against the standards of a real chance or a real risk (the former having been subsequently confirmed to be the appropriate test) for such reasons. It then reached a conclusion in terms of the complementary protection criterion.
It has not been established that the Tribunal’s consideration of the complementary protection claims was in some way “bound up” in Refugee Convention-related reasoning. The Tribunal specifically addressed the complementary protection claim based on being a failed asylum seeker by reference to the language of the Migration Act and by reference to its particular findings of fact in that respect (also see SZSGA at [55] and [57]).
On a fair reading of the Tribunal’s decision, its reference to “as noted, on the information before the Tribunal” is clearly a reference to the part of its findings and reasons in which it considered the Applicant’s claims based on being a failed asylum seeker. The fact that in considering the complementary protection provisions the Tribunal referred to its earlier findings (including in relation to serious harm) is not such as to indicate that the Tribunal did not understand that the test for complementary protection involved significant harm in terms of s.36(2)(aa) of the Act. It is apparent from the Tribunal’s reasons for decision that it understood the distinction between the particular requirements of ss.36(2)(a) and 36(2)(aa) of the Act. It was presciently aware of the test that had to be applied in considering the Applicant’s complementary protection claims. It referred to the correct test in paragraph 98 of its findings for reasons. This is not a case in which it can be said that the Tribunal applied the wrong standard of proof in relation to the test (cf SZQRB).
The Tribunal’s lack of satisfaction that the Applicant met the complementary protection criterion in relation to this aspect of his claims was not based on the absence of a Convention nexus. Nor did it have regard to the motivation of those the Applicant claimed to fear. Rather, in light of its earlier findings and independent country information in relation to the treatment of returned failed asylum seekers, it was based on the Applicant’s failure to satisfy the Tribunal that there was a real risk he would suffer significant harm as a failed asylum seeker who had left the country illegally.
Insofar as it also appeared to be contended by the Applicant that the Tribunal had in some way failed to consider the Applicant’s claims as a failed asylum seeker under the complementary protection provisions, this appears to be based on the contention that the Tribunal did not apply the correct test. It is not made out.
Ground 2 in the amended application is not made out.
Whether the Tribunal erred in its approach to independent country information
The third ground in the amended application is that the Tribunal:
made an error of law by approaching their (sic) fact finding task, at paragraph [92] of the decision, on the basis that a choice had to be made between the various items of Country information rather than assessing the weight to be attached to the country information in order to assess whether the fear held by the applicant was well founded in light of the information then available.
Paragraph 92 of the decision is as follows:
Having considered this differing and inconsistent information I find more reliable, and prefer, the reporting from the British, Australian, Canadian, Danish and other official sources. On the basis of the information before the Tribunal I am not satisfied that Sri Lankan citizens, whether or not they are Tamils, are subjected to serious harm on arrival in Sri Lanka or subsequently, simply because they have sought asylum overseas or because they departed in breach of Sri Lanka’s emigration laws, or because they are members of a particular social group consisting of such persons.
This finding was made after the Tribunal summarised information submitted by the Applicant’s advisor about the treatment of failed asylum seekers and also information from what it described as official sources. The Applicant submitted that in dealing with what it accepted to be “differing and inconsistent information” the Tribunal had approached its fact-finding task on the basis that it had to make a “binary decision” and pick between two sets of material. Reliance was placed on remarks made by Riethmuller FM, as he then was, in MZYLE v Minister for Immigration & Citizenship [2011] FMCA 589 at [46] – [47] as follows:
The law in this area does not require a decision-maker to “come down on one side or the other”. Rather the law requires the decision-maker to first make an assessment of the material and identify the facts and circumstances which they are persuaded to accept or reject and assess the weight to place on each item of evidence. Secondly, in cases involving asylum seekers, the legal test is not limited to whether or not they have proven a particular factual element (such as the application of physical force on a specific occasion), but ultimately requires an assessment of risk in determining whether or not the asylum seeker holds a well-founded fear of persecution.
To approach the task on the basis that a decision-maker has a responsibility to “come down on one side or the other” can only lead to real concern that rather than assessing and weighing the evidence in order to determine which facts and circumstances the decision-maker is persuaded of, (and the weight to be placed on the material in order to properly assess the risk) the decision-maker felt forced to make a binary decision and effectively pick one version or the other, even though the decision-maker may not be persuaded to the requisite standard that any particular given state of affairs actually exists: the very error committed by the trial judge in Rhesa Shipping Co SA v Edmunds (the Popi M) [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyds Rep 1. The assessment of risk is a different finding to a decision as to whether a particular factual element of a course of action has been established.
In MZYLE the decision-maker (an Independent Merits Reviewer), faced with divergent views in independent country information, had stated that “it is the decision-maker’s responsibility to come down on one side or the other”. The Reviewer was said to have erred in law in his approach to the issues relating to the risk to the Applicant on return to his home country. Riethmuller FM stated (at [45]) that:
In assessing a claim by an asylum seeker the law is quite different. It is not necessary to establish on the balance of probabilities that a particular asylum seeker will in fact suffer persecution, but rather that there is a well-founded fear of persecution. That is, the law requires an assessment of the risk to the asylum seeker, not a positive finding as to what the future will in fact hold. As the Full Federal Court said in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 (at paragraph [13]):
[13] In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) [1993] FCA 545; (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka...
In written submissions the Applicant submitted that this decision was upheld on appeal by North J in Minister for Immigration and Citizenship v MZYLE [2011] FCA 1210. That decision related to an interlocutory application in which orders were sought that the Minister pay the costs of a video link between a detention centre and the Federal Court for the hearing of the Minister’s substantive appeal. It appears that the Applicant intended to refer to Minister for Immigration and Citizenship v MZYLE(No 2) [2011] FCA 1467 in which North J accepted (at [34]) that in referring to having to “come down on one side or the other” (at [32]) the reviewer had “misunderstood the ultimate questions to be resolved in the full scope of his function” and found (at [33]) that:
Rather than undertaking an assessment of the risk of persecution to the claimant, the reviewer proceeded as if the fact finding on the issue of the scrutiny of asylum seekers in the past resolved the question of whether the claimant fell within the definition of a refugee.
In other words the reviewer in MZYLE had failed to assess the risk to the claimant of persecution in the future and had thereby asked himself the wrong question.
MZYLE does not assist the Applicant. In this case (in contrast to MZYLE) the Tribunal did not state that it had to “come down on one side or the other” of divergent independent country information. Nor did it proceed on that basis. Nor did it fail to make an assessment of the risk to the Applicant of persecution in the future.
Rather, in the part of its decision in issue the Tribunal referred first to the range of country information submitted by the Applicant’s advisor in support of the claim that the Applicant would be subject to mistreatment on return to Sri Lanka as a failed asylum seeker, including reports from Australian, Sri Lankan and other media sources, reports by NGOs, including Human Rights Watch (HRW), Amnesty International and Freedom from Torture (FFT), as well as a report by the Canadian Immigration and Refugee Board incorporating a joint submission received from a number of NGOs. The Tribunal made the point that most of this material addressed risks of harm to Tamils returning to Sri Lanka and was not directly relevant to the Applicant’s situation. Nonetheless the Tribunal went on to consider such information as having a wider application to the case of returned asylum seekers in general.
The Tribunal summarised the reports from Amnesty International, Human Rights Watch and Freedom from Torture. While this was said to include specific cases of persons who had been detained and subject to torture and other forms of mistreatment on return to Sri Lanka from the United Kingdom, the Tribunal noted several matters. For example it found that the persons that were the subjects of all 24 cases examined in the FFT report had returned to Sri Lanka voluntarily and were not being returned as failed asylum seekers. They were all Tamils and all had actual or perceived links with the LTTE. Similarly, the Tribunal noted that 12 of the 13 cases cited by HRW of persons said to have escaped to the United Kingdom from Sri Lanka after being returned there as failed asylum seekers were accused of having LTTE connections and that where their racial background was specified it was Tamil. In addition, the Tribunal observed that the Amnesty International report cited did not contain any details of specific cases in which persons were said to have been harmed on return to Sri Lanka and while the report referred to the forced return of a group of 26 failed asylum seekers, the majority of these were reported to be Tamils. Further, the evidence was that while the group was questioned on arrival, subsequent media reporting cited by the Tribunal indicated that all members of the group had been allowed to leave the airport and the police did not charge them with any offences.
In addition, the Tribunal referred to what it described as an “extended response to these claims” by the UK Border Agency (UKBA) in October 2012 in which it confirmed the policy on returns to Sri Lanka noting, among other things, that while ill-treatment amounting to torture did occur in Sri Lanka, generally such acts were random and usually employed to extract confessions and that certain categories of individuals may have a profile or accumulated risk factors which might place them at risk. In addition, the Agency observed that HRW and FFT had not provided requested details of the anonymous persons making allegations of mistreatment in order to permit further investigation and that the UK Immigration and Asylum Chamber, Upper Tribunal, had indicated that the quality of the claims made about cases of concern by FFT, Amnesty and HRW “leaves much to be desired”. The UK Border Agency pointed out that even if credible, such allegations amounted to a minute fraction of total returns to Sri Lanka over the past three years and stated that the British High Commission in Colombo, which was closely involved in the return process of asylum seekers from the United Kingdom, had not reported issues of concern regarding returns and nor had the UNHCR or the IOM, which both operated programs to support voluntary returns.
The Tribunal acknowledged that there was information submitted by the Applicant’s advisor that the United Kingdom High Court had on a number of occasions issued injunctions preventing the removal of asylum seekers to Sri Lanka, but noted that those most recently issued were in the nature of interim orders to allow respondents to provide further information. It referred to a Sydney Morning Herald article reporting that two Sinhalese brothers returned to Sri Lanka in 2009 had been interrogated and tortured in police custody (apparently on suspicion of involvement in people smuggling), that a Tamil whose boat had been intercepted while leaving was tortured on suspicion of a link with the LTTE and that asylum seekers returning from Australia were routinely imprisoned for periods of up to a fortnight and faced charges of illegal departure for which the penalty was a fine.
However the Tribunal stated that it had also considered reports on Sri Lanka’s treatment of failed asylum seekers provided by the Australian Department of Foreign Affairs and Trade between 2009 and 2012, the Danish Immigration Service in 2010 and the Canadian High Commission in Colombo. It found that this latter information indicated that under standardised procedures applying to all cases, regardless of the circumstances of departure, returnees to Sri Lanka were routinely interviewed by the authorities on arrival at any airport and that these processes involved police and security clearances and checks for outstanding warrants and could take some hours. It recorded that if such processes revealed outstanding arrest warrants for prior criminal offences, or there were alerts against the person’s name in immigration watch lists, or if they were of security interest or there was evidence of involvement in people smuggling they may be subject to further questioning. However the Tribunal found that this information indicated that if such checks revealed no outstanding warrants or concerns on security or criminal grounds, the returnee was allowed to leave the airport.
The Tribunal also referred specifically to the fact that DFAT had noted that in the High Commission’s experience up until mid-October 2012, no failed asylum seekers returned from Australia had been charged under Sri Lankan legislation for offences relating to their irregular departure. Moreover the Canadian High Commission was reported as stating that in the past two years there had been no recorded cases of detention or other issues relating to persons who departed Sri Lanka without legal documents and no known adverse impacts for persons returning who were identified through the procedure for obtaining travel documents as having originally departed without an issued passport.
It was after that consideration, that the Tribunal went on to make the finding at paragraph 92 of its reasons for decision with which the Applicant takes issue. The Tribunal concluded that as it was not satisfied that the Applicant had ever come to the adverse attention of the authorities or that he would be suspected of having connections with the LLTE, it did not accept that on return to Sri Lanka he would be required to do more than attend one or more routine interviews at the airport, possibly extending over a number of hours, before being allowed to leave. It was not satisfied that then, or subsequently, the Applicant would suffer serious harm for reason of his membership of the particular social group of failed asylum seekers who had left the country illegally. Nor was it satisfied that the Applicant’s lack of a passport or travel documentation would place him at greater risk of harm. It noted that while the applicant’s advisor had also cited country information indicating that Sri Lankans who were no longer in possession of their National Identity Card faced additional risk on return to Sri Lanka, the Applicant’s evidence was that he possessed such a document in Sri Lanka. The Tribunal was not satisfied he would face any difficulties on return to Sri Lanka through a lack of his National Identity Card.
On a fair reading of the Tribunal reasons for decision, it did not proceed on the basis that its only choice (or its obligation in relation to conflicting country information) was to “come down on one side or the other” without any need for analysis or judgment. Rather, the Tribunal explicitly stated that it had considered the various items of country information, which it described as differing and inconsistent, and in that context it preferred country information from official sources because it considered them more reliable. In other words the Tribunal made its own assessment of the country information before it. It did not approach the matter on the basis that it had to pick one version or the other as to a particular state of affairs.
In circumstances where regard was had to the range of information, the fact that the Tribunal made a finding preferring some country information over other information does not mean that it proceeded on the basis of a preconceived notion that there was a requirement to come down on one side or the other. The Tribunal considered the conflicting country information, assessed that information and made findings on that basis (see SZQNJ v Minister for Immigration & Anor [2012] FMCA 815 at [134]). It is well-established that the choice and interpretation of country information is a factual matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]). The Tribunal plainly made its own assessment of the country information. It then went on to make an assessment of whether the Applicant had a well-founded fear of harm in Sri Lanka. Contrary to the Applicant’s submissions, the Tribunal did not proceed on the basis of a binary proposition which precluded analysis of or an application of the real chance test.
Insofar as the Applicant relied on the Rhesa Shipping case in support of the proposition that it could be inferred that the Tribunal proceeded on the same basis as the reviewer expressly stated he had to do in MZYLE, that is “to come down on one side or the other”, such authority does not assist. In Rhesa Shipping the plaintiffs would have been entitled to recover insurance for loss of a vessel if they could prove that the loss was caused by perils of the sea. The House of Lords found that if the cause of the ship’s loss was in doubt, there was no justification for an inference that there had been a loss by perils of the sea and that the plaintiffs had failed to discharge the burden of proof which lay upon them. It was in that context that Lord Brandon of Oakbrook referred (at 718) to the fact that the trial judge was not bound always to make a finding one way or the other with regard to the facts averred by the parties and could find the party on whom the burden of proof lay had failed to discharge that burden. This is not such a situation (as Riethmuller FM pointed out in MZYLE at [45]). Ground 3 is not made out.
However as ground 1 in the amended application has been made out the matter should be remitted to the Tribunal for reconsideration according to law.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 25 October 2013
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