SZSUE v Minister for Immigration and Border Protection

[2014] FCA 639

FEDERAL COURT OF AUSTRALIA

SZSUE v Minister for Immigration and Border Protection
[2014] FCA 639

Citation:	SZSUE v Minister for Immigration and Border Protection [2014] FCA 639
Appeal from:	SZSUE v Minister for Immigration and Border Protection & Anor [2013] FCCA 2133
Parties:	SZSUE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number	NSD 2596 of 2013
Judge:	WIGNEY J
Date of judgment:	19 June 2014
Legislation:	Migration Act 1958 (Cth)
Cases cited:	NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) (2004) 144 FCR 1
Date of hearing:	9 May 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	29
Counsel for the Appellant:	WG Flynn and PW Bodisco
Solicitor for the Appellant:	Rasan T. Selliah & Associates
Counsel for the First Respondent:	R Francois
Solicitor for the First Respondent:	Australian Government Solicitor
Second Respondent:	The second respondent filed a submitting notice.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2596 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSUE
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	19 JUNE 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2596 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSUE
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WIGNEY J
DATE:	19 JUNE 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Sri Lanka. He arrived in Australia by boat without any visa or travel documents in May 2012.  In August 2012 he applied for a protection visa, claiming that he feared persecution or serious harm should he be required to return to Sri Lanka.  His visa application was rejected by a delegate of the First Respondent, the Minister for Immigration and Border Protection (Minister), and on review by the Refugee Review Tribunal (Tribunal).

2. The appellant unsuccessfully challenged the Tribunal’s decision in judicial review proceedings in the Federal Circuit Court.  He argued that the Tribunal had erred jurisdictionally because it failed to consider a particular claim or “integer” of a claim.  The primary judge rejected that argument. 

3. In this appeal the appellant again argues that the Tribunal failed to consider a claim or integer of a claim he made in support of his protection visa.  But the arguments he advances, however one may look at them, are different to the arguments advanced to the court below.  In any event, for the reasons that follow, they have no merit and the appeal must be dismissed.

   Factual background

4. Given the very narrow arguments advanced in the court below and on appeal it is unnecessary to deal at length with the facts.

5. The appellant is of Tamil ethnicity.  Amongst the various claims he made in support of his protection visa application, the appellant claimed he feared persecution or serious harm in Sri Lanka because of his ethnicity and religion.  He claimed that as a Tamil male he had been harassed by the Sri Lankan army on suspicion of being a member of the Liberation Tigers of Tamil Eelam.  He also feared that he would be arrested and harmed if he was to return to Sri Lanka because he had departed the country illegally. 

6. Both the Minister’s delegate and the Tribunal on review found, for various reasons, that they were not satisfied that these claims gave rise to protection obligations on the part of Australia that would provide the basis for the grant of a protection visa.  The findings in respect of these claims were not challenged in the court below or on appeal.  It is unnecessary to consider them further.

7. The claim that is relevant to the appeal involved an incident in a bar in Valaichchenai (an eastern province in Sri Lanka) a few months before the appellant left Sri Lanka ultimately bound for Australia.  The appellant’s evidence was that he worked in the bar as a bartender.  It was a takeaway bar only.  Patrons were not permitted to, but frequently did, drink out the front of the bar.  This resulted in frequent visits by the police.

8. One day in March 2012 two men came to the bar and bought some beer from the appellant.  In spite of the appellant’s warnings, the two men proceeded to open the beer and drink it in front of the bar.  The appellant reported them to two undercover police officers who apparently happened to be present in the bar.  The police officers did nothing and left without further word.

9. The two men, however, were angry with the appellant.  They dragged him out of the bar and started to beat him for having reported them to the police.  The appellant escaped, returned to the bar and called the police.  The police arrived and took the two men away.  As they did so, one of the men told the appellant that they would come back and “look after” him.

10. The appellant, it seems, also reported the incident to his boss.  The boss told him to take his lunch break and to come back later.  Sometime later, the boss called the appellant and told him not to come back because the two men had returned, and had asked the boss where the appellant lived.

11. The appellant decided to take some time off.  He never returned to work at the bar and ultimately decided to leave Sri Lanka.  He said that he believed the incident in the bar was a “setup” and that the two men were members of one of the para-military groups that were active in the area where he lived, “such as the Karuna Group”.  He believed that members of the Karuna group would pursue him.

    Findings and reasons of the Tribunal

12. In relation to the incident in the bar, the Tribunal made the following findings (at [53] and [54]):

    Whilst I accept that the applicant may have had the experiences he so described while working as a bartender I do not accept that the customers he had encountered were members of the Karuna group or that they were politically motivated to harm him.  The applicant merely asserts that they are Karuna members but without providing any grounds for accepting this assertion.

    I accept that the applicant requested and received police intervention in regard to this incident and also received the support of his employer.  I do not accept that they subsequently threatened him and are motivated to harm him on his return to Sri Lanka as I consider the event to be a one-off. (Emphasis in original)

13. The Tribunal then dealt with other aspects of the appellant’s case and concluded as follows (at [60]):

    In these circumstances I do not accept that the applicant has a well-founded fear of persecution for a Convention reason on his return to Sri Lanka now or in the reasonably foreseeable future.  Nor do I accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to a receiving country that there would be a real risk of the claimant suffering significant harm.

    Proceedings in the Federal Circuit Court

14. In the Federal Circuit Court, the appellant claimed that the Tribunal committed a jurisdictional error because it failed to consider a claim or an integer of a claim that arose on the information and evidence before it.  That claim or “integer” was that “the men who attacked the [appellant] at his employment at a bar in Valaichchenai were members of the [Criminal Investigation Department] CID”.

15. The primary judge rejected the contention that the appellant had ever claimed that the two men who attacked him in the bar were from the CID.  Her Honour found that the Tribunal considered the appellant’s evidence relating to the incident in the bar and rejected his claim to have been at risk of future harm arising from that incident.  There was accordingly (at [62]) “no residual, substantial, clearly articulated claim relied on established facts which the RRT failed to consider (see: NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) (2004) 144 FCR 1 at 22).”

    Appeal grounds and submissions

16. The appellant’s notice of appeal contains two grounds.  Only one ground was pressed on appeal.  It is in the following terms:

    The Court below erred in finding that the [Tribunal] did not commit jurisdictional error by failing to consider a claim or integer of a claim that arose either expressly or clearly on the information and evidence before it. 

17. No particulars of the “claim or integer of a claim” the subject of this ground are provided in the notice of appeal.  As already indicated, the only claim or integer of a claim that was the subject of argument in the court below was the supposed claim that the two men were from the CID.  The primary judge found that no such claim had ever been made by the appellant.

18. That finding is not challenged in this Court.  It was plainly correct.

19. Instead, the appellant advances two arguments, neither of which were made in the court below.

20. First, in his written submissions, the appellant contends that the Tribunal only considered whether Australia owed him protection obligations under the Refugee Convention.  It did not consider whether the appellant’s claims satisfied the complementary protection criterion in s 36(2)(aa) of the Act.  This was said to flow from the fact that the Tribunal rejected the appellant’s claim that the incident in the bar was “politically motivated”.

21. Second, in oral submissions made on the appellant’s behalf at the hearing of the appeal, the appellant contended that the claim or integer not considered by the Tribunal was that there was a real risk that the appellant would suffer significant harm if, upon his return to Sri Lanka, there was “chance meeting” between the appellant and the two men from the bar.  The essence of the argument is that whilst the Tribunal found that the two men were not motivated to hurt the appellant at the time of the incident in the bar, it did not follow that they would not be motivated to hurt him in the future if there was a chance meeting in Sri Lanka.

22. The appellant maintains that these two arguments are not new arguments and were advanced in the court below.

23. The Minister contends that they are new arguments and the appellant should not be given leave to raise them for first time on appeal.

24. The Minister is plainly right that these arguments were not put below.  That is obvious from the record of the proceedings below.  However because they can be dealt with shortly, the better course is to grant the appellant leave to put these arguments in support of his appeal.

    Did the Tribunal fail to deal with a claim or integer of a claim?

25. The short answer is no.  A fair reading of the Tribunal’s decision and reasons clearly reveals that it considered and dealt with all aspects of the appellant’s claims and all of the evidence that was before it.

26. The appellant’s argument that the Tribunal did not consider or analyse his claims against the complementary protection criterion has no merit.  The Tribunal considered and rejected (in [54]) the appellant’s claims and evidence that the two men subsequently threatened him and “are motivated to harm him on his return to Sri Lanka”.  That was because the incident in the bar was a “one off”.  It logically followed from this factual finding that there was, to use the language of s 36(2)(aa) of the Act, no “substantial grounds for believing that, as a necessary and foreseeable consequence of [the appellant] being removed from Australia to [Sri Lanka], there is a real risk that [the appellant] will suffer significant harm”.  The Tribunal so found (at [60]).

27. The appellant’s additional or alternative argument has even less merit.  The Tribunal’s finding was not limited to the motivation of the two men at the time of the incident.  It not only rejected the appellant’s evidence that the event was politically motivated.  It also rejected the appellant’s case that the two men “are” motivated to harm him (at [54]).  That finding, in any event, plainly flows from the Tribunal’s finding that the incident was a “one off”.  It implicitly, if not explicitly, amounts to a finding that there was no risk that the two men would harm the appellant if he was to return to Sri Lanka, even if they came into contact with each other by chance.

28. The submission that the Tribunal was required to, but did not, consider whether a “chance meeting” could provide a “substantial ground” for a belief that there is a real risk of “significant harm” befalling the appellant if he is returned to Sri Lanka is, with the greatest respect, somewhat fanciful given the clear factual findings made by the Tribunal.  Those findings were open to the Tribunal on the evidence.

29. The primary judge was correct to find that the Tribunal’s decision was not affected by jurisdictional error.  The new arguments advanced by the appellant have no merit and are rejected.  The appeal is dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Associate:

Dated:       19 June 2014