SZSWZ v Minister for Immigration
[2015] FCCA 1641
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSWZ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1641 |
| Catchwords: MIGRATION – Review of decision of Refugee Review Tribunal affirming decision of delegate of Minister for Immigration and Border Protection to refuse to grant applicant a Protection (Class XA) visa – whether the Tribunal failed to consider a claim – whether the Tribunal considered any future harm applicant may face – whether the Tribunal was obliged to consider complementary protection claims separately – consideration of WZAPN issue – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 46A(2), 91R, 414 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 |
| Applicant: | SZSWZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1176 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 30 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Graycar |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the First Respondent: | Mr H Bevan |
| Solicitors for the First Respondent: | Minster Ellison Lawyers |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application filed on 28 May 2013 and amended on 14 March 2014 be dismissed.
The Applicant pay the First Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1176 of 2013
| SZSWZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application filed on 28 May 2013 under the Migration Act 1958 (Cth) (the “Migration Act”), seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) being RRT Case number 1216048, a decision of Tribunal Member A. Mullin, dated 24 April 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) not to grant the applicant a Protection (Class XA) visa.
By consent, the solicitors for the Minister filed a folder, which was indexed, labelled and paginated, containing all documents that may be relevant to the hearing, on 25 July 2013. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
The applicant was granted leave to file and serve an amended application and any evidence he wished to rely upon on or before 14 March 2014. The applicant was also granted leave to file and serve a short written outline of submissions and list of authorities fourteen days before the date of the hearing. An amended application (the “Amended Application”) was filed on 14 March 2014 along with the affidavit of Gillian Cameron, affirmed 14 March 2014 (the “Cameron Affidavit”). An outline of submissions was filed on 16 June 2014.
The Cameron Affidavit contains three annexures. The annexures comprise:
a)Annexure “A” – a copy of the transcript of the audio recording of English words spoken at the Tribunal hearing [1:22:55] – [1:24:52];
b)Annexure “B” – a copy of the transcript of the 2010 US Department report on Sri Lanka (and is referred to at Annexure “A” above);
c)Annexure “C” – copy of the December 2011 Sri Lanka United Kingdom Border Agency Home Office Operational Guidance Note (referred to at CB 92).
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant, who was born on 13 May 1982 and is a male citizen of Sri Lanka, arrived in Australia on 11 April 2012. He participated in an entry interview on 18 April 2012 (CB 1-16) and on 5 July 2012 he was notified that the Minister had exercised his power under s.46A(2) of the Migration Act to permit him to lodge an application for a Protection visa (CB 18), which he did on that date (see CB 22-86, and 110-114).
On 12 August 2012, the applicant’s adviser provided further submissions (at CB 91-109).
As noted above, the delegate refused the application by decision dated 1 October 2012. The applicant sought review by the Tribunal on 17 October 2012 (CB 147-152).
The applicant now seeks judicial review of the Tribunal’s decision, relying on the Amended Application filed on 14 March 2014.
The applicant’s claims for protection
The applicant’s claims for protection were summarised by the Tribunal at CB 255-259 (Decision Record at [8]-[11]). In short, the applicant, who is Sinhalese and Christian, claimed he has a personal and family history of involvement with the United National Party (the “UNP”). He began actively supporting the party, in particular, via support for a local candidate, Bernard Fernando, who was standing in a local council election, in about November 2010. That candidate lost the election and the applicant began experiencing problems thereafter, including threats from supporters of the ruling United People’s Freedom Alliance (the “UPFA”). This included threats from his neighbours in his village where the majority of people support the UPFA. The applicant was physically attacked by reason of his work for the UNP.
The applicant also participated in a UNP rally near the port of Chilaw in February 2012. At that rally, there was an outbreak of violence and a number of people were injured and at least one killed. After this, he feared for his life and was advised by his uncle to hide because the authorities and UPFA were cracking down on UNP supporters.
After that rally, the applicant saw a white van stop near his house. He hid, but the men in the van asked his wife where he was and searched his house. This happened again some days later. After the second “white van” incident, he realized it was not safe to remain in Sri Lanka and arranged to come to Australia.
The applicant also heard from his family that his home had been visited by plain-clothed officers in April 2012, after he had left Sri Lanka, which he did illegally, without a passport or any other travel document.
The applicant fears that if he returns to Sri Lanka, he might be killed or seriously harmed by the authorities (including the UPFA) because of his support for the UNP. He also fears harm as a failed asylum seeker. In addition, the applicant claimed that if returned to Sri Lanka, there was a real risk that he would suffer significant harm and thus he meets the criteria for complementary protection (s.36(2)(aa)): see CB 212-213.
The Tribunal’s decision
In its decision dismissing the application for review, the Tribunal:
a)Found there was no substantiation for the applicant’s claims to have been politically active in his area, apart from a letter from a Hector Appuhamy (CB 87), which stated that he had supported the writer who was a big supporter of the UNP and had received threats, on which the Tribunal did not consider “any weight can be placed … as evidence in support of the Applicant’s claims to political activism” (CB 264 at [20]);
b)Noted that the applicant was not and had never been a member of the UNP; did not claim any leadership role in the UNP and was not involved with the party until November 2010 when he began to work for Bernard Fernando, who was campaigning on behalf of the UNP for a seat on the Nattandiya council in elections in March 2011 (CB 264 at [21]);
c)Was prepared to give him the benefit of the doubt to the extent of accepting that he had supported Bernard Fernando’s (unsuccessful) campaign for local government election from November 2010 to March 2011, albeit that the Tribunal expressed concerns about the credibility of the applicant’s claims, and noted that his account of his alleged political work was “brief and vague” (CB 264-265 at [22]-[23]);
d)Was also prepared to give the applicant the benefit of the doubt by accepting that he attended a demonstration in Colombo over the arrest of General Fonseka, and that he attended meetings held by Hector Appuhamy and assisted his campaign for election, in company with his friend Bernard Fernando, but was not prepared to find that he was involved in supporting Appuhamy’s election campaign (CB 265 at [24]-[25]); and
e)Found that he was involved in the demonstration in Chilaw in February 2012, but was not satisfied that that demonstration was organised by the UNP nor, more specifically, by Hector Appuhamy, nor that there was any evidence that those who attended are now targeted by the regime which, the Tribunal found, holds union organisers responsible for it (CB 265-266 at [26]-[27]).
The Tribunal concluded that considering those matters with the country information about political violence in Sri Lanka, it was not satisfied that the applicant “can have developed any significant profile as a leader or political activist for the UNP in his own village or elsewhere in Sri Lanka”, or that his “low-level support for an unsuccessful local government candidate … could plausibly have made him a target for harm at the time” (CB 266 at [28]). The Tribunal also rejected the applicant’s claims to have been assaulted by supporters of the UPFA, to have been videotaped at the demonstration, and to have been targeted for his attendance. It further did not accept that he was warned by his uncle or that he was “ever hunted by men in a white van”, either before or after his arrival in Australia (CB 266: [28]). The Tribunal concluded:
29. As I am not satisfied that the Applicant was ever harmed for his political opinion in support of the UNP in the past, and as I do not accept that the situation has changed for him since he departed Sri Lanka in March 2012, I am not satisfied he would suffer harm for such a reason on return to Sri Lanka.
(CB 266 at [29])
The Tribunal also rejected a claim that the applicant would be imputed to hold an opinion in favour of the Liberation Tigers of Tamil Eelam (the “LTTE”) (CB 266 at [30]).
The Tribunal considered and rejected claims arising from the applicant’s illegal departure from Sri Lanka and his lack of a valid passport, as well as his claim to fear persecution on the basis of having sought asylum in Australia (CB 267-268 at [31]-[38]) and concluded that it was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should he return to Sri Lanka (CB 268 at [39]). Nor did the Tribunal consider that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there would be a real risk that he would suffer significant harm and thus meet the complementary protection criterion (CB 268 at [39], [41]).
Application for Judicial Review
The Amended Application, filed 14 March 2014, pleads the following grounds:
1. The Tribunal failed to respond to the applicant’s claim to fear persecution in the reasonably foreseeable future if he were to be returned to Sri Lanka.
Particulars
a. Before the Tribunal (at CB206 [61]), the applicant’s representative expressly relied on a submission made to the Delegate, in which the representative had quoted from the UK Operational Guidance note of December 2011, that “[T]here were reports of cases in which persons were detained for what appeared to be simply their opposition to the government and its top leaders. There were numerous cases of police arresting persons for putting up or simply possessing posters critical of the government …”: CB 92; (and see Delegate’s Decision at CB 133-134 and 139), having already advanced such claim during an interview conducted by the delegate with the applicant on 12 July 2012 where the representative expressly relied on the 2010 US State Department report to submit that “persons appeared to be detained for what simply appeared to be their opposition to the government” (at 1:24:12).
b. The 2010 US State Department report said (at 15):
i. there were “cases in which persons were detained for what appeared to be simply their opposition to the government”; and
ii. “numerous cases of police arresting persons for putting up or simply possessing posters critical of the government”.
c. The Tribunal found that the applicant had attended demonstrations: [24] and supported the failed election campaign of Bernard Fernando by “putting up posters and distributing other election material”: [23].
d. When the Tribunal purported to consider whether the applicant would face a real chance of persecution if returned to Sri Lanka:
i. the Tribunal did not refer to or consider the applicant’s claim, supported by country information, to fear persecution based on his opposition to the government and his election campaign activities (see CB 205-206; CB 208 and CB 246-247), focusing instead only on the “significance” or otherwise of his political profile (CB 266, [28]);
ii. the Tribunal looked only to the circumstance that the applicant had not suffered harm in the past; and
iii. did not consider whether the applicant might suffer harm in the future because he fit the profile of an opponent of the government as described in the UK Operational Guidance note and the 2010 US State Department report: [29].
e. A failure to respond to a clearly articulated claim involves a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24], [95]; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [90].
f. A failure to respond to a claim squarely raised or apparent on the material available to the decision-maker involves a constructive failure to exercise the Tribunal’s review function: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]
2. The Tribunal failed to consider whether there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm if returned to Sri Lanka by reason of his opposition to the government and election related activities and thus failed to respond to his claim for complementary protection.
Applicant’s Submissions
Ground One
The applicant submits that the gravamen of Ground One is that the Tribunal failed to respond to the applicant’s specific and expressly articulated claim to fear persecution in the reasonably foreseeable future if he were to return to Sri Lanka, in accordance with material that was before it in support of the applicant’s claim. This material related to the claim that, merely by being an opponent of the government, by having supported an opposition political candidate and put up posters in support of the opposition, the applicant was at risk of harm. The second and related aspect of this ground is that the Tribunal made its decision by reference to a finding that the applicant had not suffered harm in the past. It did not, as it was required to do, consider whether there was a real risk of persecution in the reasonably foreseeable future if the applicant were to be returned to Sri Lanka. These will be considered in turn.
Failure to consider a claim
It is now well accepted that a failure to have regard to a “clearly articulated argument” relying on established facts is a denial of natural justice: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ (and see [95] per Hayne J); Plaintiff M61/2010E v Commonwealth of Australia & Ors (2010) 243 CLR 319 at [90] and constitutes jurisdictional error.
The Tribunal is required to respond to a claim either articulated by a party before it, or one that squarely arises on the material before it: see Dranichnikov (supra) at [22]-[24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [58]- [61]; and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [8]-[12]; [41]-[42]. Failure to do so constitutes jurisdictional error.
As Flick J pointed out in WZAQU v Minister for Immigration and Citizenship & Anor (2013) 140 ALD 612 at [10]:
10. Even where a claim falls short of being expressly raised, a decision-maker must consider every claim that clearly arises on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] to [61], 144 FCR 1 at 18-20 per Black CJ, French and Selway JJ. See also: SZRHH v Minister for Immigration and Citizenship [2012] FCA 1424 at [31] to [32] per Buchanan J; MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 at [141] to [145], 130 ALD 256 at 278-279 per Dodds-Streeton J.
In his reasons for decision in Htun (supra) at [42], Allsop J (as he then was) stated:
42. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration.
In this case, the applicant’s claim was rejected, inter alia, on the basis that the Tribunal was not satisfied that the “applicant can have developed any significant profile as a leader or political activist for the UNP in his own village or elsewhere” and the Tribunal was not satisfied that his “low-level support for an unsuccessful local government candidate … could plausibly have made him a target for harm” (CB 266 at [28]), nor was it satisfied that “it is plausible that his attendance at a protest in Colombo … would have added to his political profile so as to make him a target” (CB 266 at [28]).
However, the Tribunal did not address the specific claim made by the applicant (see for examples of that claim being articulated, the applicant’s adviser’s submission at CB 92; CB 95; CB 206; CB 208, and see also the evidence referred to in the Cameron Affidavit) to the effect that people were detained for what appeared to be “simply their opposition to the government” or for “possessing posters critical of the government”. That is, the applicant’s claim was not that he was a political leader with a “political profile”; rather, his claim was that he had been persecuted because of, and feared in the future being persecuted because of, his political opposition to the government.
The Tribunal did not doubt that he was a supporter of the UNP; that he had rendered assistance to an unsuccessful UNP candidate for election and that he had attended at least two rallies that could be perceived as being anti-government. In these circumstances, the Tribunal was obliged to, but failed to, address that claim in the terms in which it was made and by reference to country information that supported and referred to that claim: specifically, the UK Home Office Guidance Note and the US State Department report of 2010, referred to at CB 92 (and see the Cameron Affidavit at page 2; page 17 and pages 58-60).
This is not a case where the Tribunal can be said to have merely overlooked a piece of evidence (which would not constitute jurisdictional error): cf Applicant WAEEv Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47] (and see also SZOYH v Minister for Immigration and Citizenship & Anor (2012) 128 ALD 554 at [33]-[38]; [50] per Reeves J, referring to the decision of Justice Lander in SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 at [32]-[33]; MZYQF v Minister for Immigration and Citizenship & Anor (2012) 134 ALD 277 at [58], [69]-[76]).
In WAEE (supra), the Full Court noted at [47]:
47. Where however there is an issue raised by the evidence advanced by the applicant … and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Rather, the applicant’s claim to fear harm on the basis of the applicant’s political opinion – viz, his opposition to the government and support of an opposition party – was central to his claim. Thus it was essential that the Tribunal deal with it lest it fall, as the applicant submits it has, into jurisdictional error for having failed to do so: see Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99, especially at [111]-[113].
In the applicant’s submission, the Tribunal has clearly failed to deal with the central issue raised by the applicant and thus has failed to consider a key element of his claim. In those circumstances, the Tribunal’s decision is vitiated by jurisdictional error and should be set aside.
Reliance on past harm in relation to assessment of fear of persecution in foreseeable future
The Tribunal, at [29] (CB 266) of the Decision Record, found that it was not satisfied that the applicant had ever in the past been harmed for his political opinion in support of the UNP. However, it is not necessary to a finding that there is a well-founded fear of persecution that the applicant demonstrate that he has been persecuted in the past. As Gummow and Hayne JJ put it in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [192] “[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past”.
In DZADC v Minister for Immigration and Citizenship & Anor (No. 2) (2012) 131 ALD 463 Raphael FM (as he then was), relying on Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, set aside a decision of a reviewer on the basis of jurisdictional error where the reviewer had failed to explain why the reviewer’s finding that nothing had happened in the past meant that nothing would happen to the applicant in the future. His Honour said at [16]:
16. However, simply to make a finding about what occurred in the past is not enough to satisfy the real chance test as elaborated in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. As the High Court opined in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ, the essence of the real chance test propounded in Chan is the process of looking to the future. Such a process has not been effectively engaged in the present case. As a counterpoint, where a Tribunal finds that no past persecution has occurred, as the Reviewer found in this case, it is not then required to consider the claims of past persecution when considering the real chance test: MSXSA v Minister [2010] FCAFC 123. It follows that a finding as to past events alone will not satisfy the real chance test, and indeed, in MSXSA the Full Court also noted that the real chance test “requires a decision-maker to engage in a degree of speculation about future events.” (At [94]). In SBZF v Minister for Immigration and Citizenship [2008] FCA 1486, Lander J opined at [51]-[52]:
“However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499.
In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act.”
In my opinion, the same must be said of the present case. The Reviewer did not go the extra step of explaining why his finding that nothing had happened in the past meant that nothing would happen in the future.
The applicant submits that precisely the same error has been made by the Tribunal in this case as was found by Raphael FM to be have been made by the reviewer in DZADC. In this case, as noted at [16] above, the Tribunal at para [29] of its reasons (CB 266) expressly stated that its decision was based on its failure to be satisfied that the applicant was ever harmed in the past for his political opinion. The only extent to which the Tribunal considered what it was meant to consider, i.e. to apply the “real chance” test, was to state that it did not accept that the situation had changed for the applicant since he departed Sri Lanka in March 2012 (also at [29] of the Decision Record). However, there is no indication of any assessment by the Tribunal of whether it considered there to be a real chance of persecution of the applicant in the reasonably foreseeable future. In those circumstances, the Tribunal has failed to carry out its statutory function of reviewing the decision (see s.414). On that basis also, the applicant submits that the Tribunal ought to be found to have committed jurisdictional error.
Ground Two
The Tribunal committed a jurisdictional error by failing to consider the applicant’s claim for complementary protection separately from its consideration of the applicant’s claim for protection under the Convention. It thus failed to comply with its obligation under s .414 of the Migration Act to review the decision of the first respondent’s delegate.
The only consideration of the applicant’s claim for complementary protection is to be found at [39] (CB 268): “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 Sri Lanka there would be a real risk he would suffer significant harm”. And at [41] (CB 268), the Tribunal stated:
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).
This ground is related to, though separate from, Ground One in that it also involves the Tribunal’s failure to consider the consequences for the applicant of his (undisputed) involvement with activities in support of the political opposition.
In this case, the Tribunal failed to address whether, as a result of the applicant’s opposition to the ruling government and participation in activities such as assisting an opposition candidate for election and putting up or being in possession of anti-government posters, there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk that he would, if returned to Sri Lanka, suffer significant harm. Instead, the Tribunal relied only on the findings made in relation to the applicant’s claim under s.36(2)(a), i.e. his claim to fear persecution which, for reasons explained above, did not address the key aspect of the claim made.
While it is not necessarily an error to reject a claim for complementary protection “for the same reasons” as rejecting a claim for refugee protection (cf SZSHK v Minister for Immigration and Border Protection & Anor (2013) 138 ALD 26), it will be such an error if the central element of the refugee claim – here, the fear of persecution based on support for the opposition political party – was not itself considered.
The relationship between a claim for protection under the Convention and a claim for complementary protection was considered in some detail by the Full Federal Court in its decision in SZSHK (supra). The Full Court in that case set out a number of key propositions as to the relationship between consideration under the Refugees Convention and under the complementary protection provisions: see [31]-[32].
The Full Court concluded at [35], referring to an earlier decision of Robertson J in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (at [57]):
… each case must depend on its own facts and on what the decision-maker’s reasoning in fact was. In the present case, the Assessor specifically addressed the complementary protection claim by reference to the language of the statute and made findings of fact which led to the conclusion that she did not accept the applicant’s claim
As is clear from the decision of the Full Court, whether reliance on the same findings as made in the Convention assessment will be sufficient to constitute proper consideration of a complementary protection claim will depend upon the particular circumstances of the case. The paradigm case where no independent assessment would be required would be one where the factual basis for the refugee claim was not accepted on the basis of negative credibility findings, and the same facts are relied upon for the claim for complementary protection (and see SZSGA at [54]-[56]). But the same does not apply to a case where a central part of the applicant’s claim was not considered at all by the Tribunal in its assessment of the applicant’s claim to fear Convention related persecution: see for example the decision of Judge Driver in SZSFK v Minister for Immigration & Anor [2013] FCCA 7 at [89]-[98].
Minister’s Submissions
The Minister submits that in the Amended Application (filed 14 March 2014) at Ground One [1(d)(i)] and [1(d)(iii)], the applicant says that the Tribunal erred by failing to consider a claim to fear persecution “based on his opposition to the government and his election campaign activities”. It is said that the Tribunal focused only on the “significance” or otherwise of his political profile” and did not consider a claim based on his “profile as an opponent of the government”. A claim based on this kind of profile is said to have arisen through the representative’s submissions and two pieces of country information (a UK Operational Guidance note and a US State Department report). It is also alleged that the Tribunal erred by only considering past harm: [1(d)(ii)] of the Amended Application.
The applicant claimed to have a well-founded fear of persecution in Sri Lanka owing to his political opinion because, relevantly, he had helped in election campaign activities for a candidate in local council elections. The Minister submits that this claim is referred to by the Tribunal in its recitation of the evidence and submissions at:
a)CB 256 at [8] (second dot point);
b)CB 258 at [10] (fourth, fifth and sixth dot points);
c)CB 259 at [11] (first dot point);
d)CB 260 at [14] (seventh, eighth and ninth dot points); and
e)CB 263 at [15] (third and fourth dot points).
The Minister submits that the Tribunal expressly considered the applicant’s claims in this regard in its Decision Record at CB 264 at [19], [21], [22] and [23].
Relevantly, the Tribunal:
a)Expressed concerns about the applicant’s credibility, stating that “his account of his alleged political work in the period was a brief and vague one, giving little circumstantial detail about an activity he claims was so significant that it led to his suffering persecutory harm and forced him to flee his country to seek shelter in a distant land”; and
b)Nevertheless, accepted that the applicant was involved in putting up posters and distributing other election material, and canvassing for votes, but was not satisfied that he performed these tasks on his own initiative.
The Tribunal gave its conclusion at CB 266 at [28] where it stated:
Considering these matters together with the independent country information about political violence in Sri Lanka I am not satisfied that the Applicant can have developed any significant profile as a leader or political activist for the UNP in his own village or elsewhere in Sri Lanka. I am not satisfied that his low-level support for an unsuccessful local government candidate, over a relatively brief period from November 2010 to March 2011 in a period when he was spending the majority of his time at sea, could plausibly have made him a target for harm at the time.
(emphasis added)
In the balance of the paragraph, the Tribunal rejected specific aspects of the applicant’s claims. The Tribunal further concluded at [29] (CB 266):
As I am not satisfied that the Applicant was ever harmed for his political opinion in support of the UNP in the past, and as I do not accept that the situation has changed for him since he departed Sri Lanka in March 2012, I am not satisfied that he would suffer harm for such a reason on return to Sri Lanka.
The legal question is whether the Tribunal has failed to deal with a claim or claims that arose on the materials, and the Minister submits that there is no error.
First, the Tribunal squarely (and, it is submitted, comprehensively) addressed the evidence which forms the basis of the claimed fear of harm.
Secondly, the Tribunal has said that it has referred to independent country information. This must include the country information cited by the applicant’s representative. Indeed, on the face of the material in the Court Book, this is the only country information to which reference is made.
Thirdly, the country information cited by the applicant does not support the allegation of error.
The UK Operational Guidance note is set out at CB 92. The applicant’s representative submitted that this document “acknowledged the risk profile of political dissidents in Sri Lanka”. The Amended Application at [1(a)] quotes from one part of this document: “There were reports of cases in which persons were detained for what appeared to be simply their opposition to the government and its top leaders. There were numerous cases of police arresting persons for putting up or simply possessing posters critical of the government” (underlining added).
The point is a short one: the country information does not say that persons putting up posters during an election campaign for a candidate other than the government candidate are at risk of harm. Rather, it identifies a different characteristic, namely, those putting up or possessing “posters critical of the government”. Here, there was no evidence of the content of the posters. This is important because the quotation from the UK Operational Guidance note immediately proceeds to say: “Applicants perceived to be active or influential in opposition to the Sri Lankan government may be at risk of persecution by the state”. In other words, there still needs to be a perception of activity or influence in opposition to the Sri Lankan government. In this case, that claim was considered and rejected by the Tribunal.
The US State Department report referred to in [1(b)] of the Amended Application is to the same effect (almost verbatim). It is not necessary to address it separately.
Here, the Tribunal considered the applicant’s claim that he would be perceived to be opposed to the Sri Lankan government because of his role in putting up posters and other election activities. While it accepted that he had done those activities, the Tribunal did not accept that this placed him at risk of harm. The Tribunal found that it was not plausible that he could have been made a target for him because his “low level support for an unsuccessful candidate” was over a “relatively brief period” and at a time “when he was spending the majority of his time at sea”.
Thus, the Tribunal considered the applicant’s claim, but rejected it at a factual level.
There was also no error in the Tribunal reaching its findings as to the lack of past harm. It is a relevant, but not essential, factor in the task imposed by s.36(2)(a) of the Migration Act: Abebe (supra) at 578 [192]. Here, the Tribunal made its findings about past harm but then immediately considered the future, as required. This is clear from the finding at CB 266 at [29] where, after referring to the lack of harm in the past and the fact that nothing had changed since his departure, the Tribunal recorded that it was “not satisfied he would suffer harm for such a reason on return to Sri Lanka”. Contrary to the applicant’s submissions, there was no failure to consider future harm.
Finally, as to the complementary protection criterion and Ground Two, the Tribunal considered this claim by way of an expression of a conclusion rejecting the claim at CB 268 at [39]. In circumstances where the Tribunal had rejected the factual foundation for the claim, it was not necessary for the Tribunal to do anything more.
Consideration
The applicant submits that the gravamen of Ground One is that the Tribunal failed to respond to the applicant’s specific and expressly articulated claim to fear persecution in the reasonably foreseeable future if he were to return to Sri Lanka, in accordance with material that was before it in support of the applicant’s claim. That claim, in short, is the applicant fears persecution in the future due to his opposition to the government and his election campaign activities. The applicant submits that the Tribunal did not consider his political profile, as reflected in the UK Operational Guidance note and the 2010 US State Department report.
A failure to consider a claim, clearly articulated, fails to accord the applicant natural justice: Dranichnikov (supra) at [24] and [95]. In Htun (supra) his Honour Allsop J (as he was then) stated at [42]:
The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration.
The applicant argues that the Tribunal did not address the specific claim articulated, being that people in Sri Lanka were being detained “for what appeared to be simply their opposition to the government and its top leaders”. Further, the applicant’s representatives noted that the UK’s Operational Guidance Note stated that “[t]here were numerous cases of police arresting persons for putting up or simply possessing posters critical of the government” (see CB 92 – applicant’s submissions before the delegate). At CB 95 the applicant’s representative submitted to the delegate:
12. The above 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 publically 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.
Also at CB 206, the applicant’s representative submitted to the Tribunal:
61. In addition to the country information provided in the Applicant’s post PV interview, there are many reports of the re-emergence of white van abductions. However, the targets of the attacks are no longer just LTTE fighters and suspected fighters, as was common during the civil war, but rather a mix of persons of ethnic backgrounds who are perceived to oppose the government.
At CB 208, the applicant’s representative submitted to the Tribunal:
64. …
Disappearances in “white van kidnappings” were a regular occurrence when the government’s war with the Tamil Tigers was at its height four years ago. But in the last year there has been a resurgence and a rise in fear among those who have dared to oppose the government or powerful figures within it.
…
In the delegate’s reasons for decision, it is noted that:
…The applicant stated he would travel with Bernard from house to house promoting his cause. The applicant further stated that he would collect people for small meetings and would post posters pertaining to Bernard.
(CB 130)
The Cameron Affidavit annexes a copy of the transcript of the Tribunal hearing at [1:22:55] and [1:24:52] at Annexure “A”. This extract sets out the claim made by the applicant’s representative, Mr Khatri of Fragomen, at the Tribunal hearing. The extract states:
REPRESENTATIVE: Just by way of summary, [the applicant] fears harm with regards to his political opinion with support for Bernard Fernando and the United National party in Sri Lanka.
He also fears harm because of the political opinion which is anti –government, pro-anti-government in the event that he is returned to Sri Lanka because he has departed Sri Lanka illegally, fled to the West and would be returned as a failed asylum seeker.
Further as someone who had played a role in bringing Tamils safely to Australia it is submitted that he might be imputed with an anti-government, pro-LTTE political opinion in the event that he is returned.
Country information clearly indicates that persons supporting opposition parties in Sri Lanka continue to be targeted.
The US State Department of 2010 confirms that persons were detained for what appeared to be simply their opposition to the government and its top leaders and that there were numerous cases of police arresting people for putting up or simply possessing posters that were critical of the government.
Annexure “B” to the Cameron Affidavit is a copy of the 2010 US Department report on Sri Lanka, which is referred to at the transcript extract above. The extract of the report at p.17 of the Cameron Affidavit states:
There were other cases in which persons were detained for what appeared to be simply their opposition to the government and its top leaders. There were numerous cases of police arresting persons for putting up or simply possessing posters critical of the government. Police arrested Jayampath Bulathsinhala, a local printer, in September for printing posters critical of President Rajapaksa and the 18th amendment.
At [23] of its Decision Record the Tribunal found:
23. Despite these reservations I am prepared to give the Applicant the benefit of the doubt to the extent of accepting that a person named Bernard Fernando did campaign unsuccessfully for the Nattandiya council election and that the Applicant supported this campaign in the period from November 2010 to March 2011. I accept that he was involved in putting up posters and distributing other election material, that he accompanied others in canvassing votes door-to-door and that he was involved in the administrative work of meetings and rallies…
(emphasis added) (CB 265)
At [28] of the Decision Record the Tribunal found:
28… I do not accept that, soon after returning to his village, he was warned by his uncle that the authorities and the UPFA were searching for him, that he was forced to go into hiding or that he was ever hunted by men in a white van. I do not accept that white vans have appeared at his house since his arrival in Australia.
(CB 266)
The applicant submits that the Tribunal, after accepting that the applicant was a supporter of the UNP, was obliged to address the claim in reference to the country information. The Tribunal rejected the applicant’s claim as it was not satisfied that the applicant had developed any significant profile as a significant leader or political activist for the UNP and was not satisfied that his low level support could plausibly have made him a target for harm.
The applicant argues that the Tribunal did not address the specific claim that was made by the applicant, before the delegate and the Tribunal, that people were detained for what appeared to be, simply their opposition to the government. Ms Graycar, on behalf of the applicant, submitted that the Tribunal was obliged, but failed, to address that claim in the terms in which it was made and failed to respond to specific country information that was put as part of that claim.
The Minster argues that the Tribunal considered the applicant’s claims against country information but rejected them at a factual level. Mr Bevan, on behalf of the Minister, took the Court through the Tribunal’s Decision Record and identified various passages where the applicant’s claim was addressed. The excerpts relating to the applicant’s support and active involvement of Bernard Fernando and the UNP are canvassed at the Decision Record are [8] (dot points 3 and 4), [10] (dot points 4, 5 and 6), [11] (dot point 1), [14] (dot points 7, 8, 9, 15 and 16), [15] (dot points 3 and 4), [19], [21], [22], [23] and [28], [29].
Mr Bevan also took the Court to the Cameron Affidavit and argued that neither the transcript extract nor the Reports identified in the annexures change the nature or the character of the applicant’s claim to have a well-founded fear of persecution based on his political opinion. Mr Bevan submitted that the Tribunal in no way failed to understand, identify or consider the claims made by the applicant.
Ms Graycar took the Court to two decisions that consider Robertson J’s reasoning in SZRKT (supra). These are Minister for Immigration and Border Protection v SZSRS & Anor (2014) 309 ALR 67 at [54]-[57] and Minster for Immigration and Border Protection vMZYTS & Anor (2013) 136 ALD 547 at [62]-[70]. In SZRKT his Honour Robertson J stated at [111]:
111. In my opinion there is no clear distinction in each case between claims and evidence… The fundamental question must be the importance of the material to the exercise of the tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
Ms Graycar argued that the issues before the Court are how critical is the information that was not considered by the Tribunal and how it clearly failed to deal with the claim raised by the applicant.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]–[13] the Full Court analysed the Tribunal’s the reliance on country information. Their Honours Gray, Tamberlin and Lander JJ found at [11]-[13]:
11. The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
12.The appellants’ submissions asserted that the Tribunal rejected all of the appellants’ claims on the basis of ‘country information’. The Tribunal’s reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant’s story, inconsistencies between different parts of his story, and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant’s credibility in determining whether it accepted some of the ‘country information’. Its treatment of the DFAT advice about Tamil males from Batticaloa, to which we have referred in [4], is an example. The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.
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) 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. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
(emphasis added)
I agree with the Minister’s submissions that the Tribunal has squarely addressed the evidence, including assessing and considering the country information submitted by the applicant’s representatives. At [29] of the Decision Record, the Tribunal stated:
29. Considering these matters together with the independent country information about political violence in Sri Lanka I am not satisfied that the Applicant can have developed any significant profile as a leader or political activist for the UNP in his own village or elsewhere in Sri Lanka…
(CB 266)
As exemplified by their Honours in NAHI (supra) it is for the Tribunal to determine the weight it gives to the country information. In this matter, the Tribunal identified and acknowledged the applicant’s political opinion (reproduced and emphasised at [65] above) and considered the claim in conjunction with the country information that was put to it. The Tribunal found at [29] that it was not “… satisfied that his low-level support for an unsuccessful local government candidate, over a relatively brief period from November 2010 to March 2011 in a period when he was spending the majority of his time at sea, could plausibly have made in a target at all…” (CB 266). The Tribunal held that applicant would not be persecuted for his political opinion because:
a)The Tribunal was not satisfied that the applicant had developed any significant profile as a leader or political activist (CB 266 at [28]); and
b)The Tribunal was not satisfied that the applicant’s low-level support for an unsuccessful candidate could have made him a target for harm (CB 266 at [28]).
Further, an administrative decision-maker is not denied from making reference to and to rely upon prior accumulated knowledge. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 his Honour Hayne J observed at [180]:
180. … The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual’s application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up “expertise” in matters …
Also, in Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601 at [7] his Honour Gleeson CJ stated:
… A review of such a decision is not an adversarial proceeding. There is no contradictor. No issue is joined. The applicant seeks to persuade the Tribunal that the unfavourable decision under review should be set aside. Typically, the primary decision will have taken into account country background information. Both the delegate, and the Tribunal member to whom the application for review is assigned, will be likely to have considered many cases involving conditions in, say, Indonesia, and will have access to official and other sources of information bearing upon political and social circumstances in an applicant’s country of origin. As is often the case with administrative decision-makers, they are likely to accumulate knowledge from the repetitive nature of the matters with which they deal. They have available to them what is, in effect, a library of reference material to which they may resort for the purpose of making decisions …
I agree with the applicant’s submissions that a claim was made that the applicant fears harm because of his political opinion. However, it is clear that the Tribunal has identified and addressed this claim in its Decision Record. The Tribunal referred to the country information provided by the applicant’s representative and made clear findings that, despite finding that the applicant was a low-level supporter, the applicant had not and would not suffer harm for his political opinion (CB 266 at [29]). I am not satisfied that the Tribunal failed to consider the applicant’s claim.
The second aspect of Ground One is that the Tribunal relied solely on the fact that it was not satisfied that the applicant had ever been harmed in the past for his political opinion. Ms Graycar submitted that it is well established that it is not necessary to a finding that there is a well-founded fear of persecution that the applicant has been persecuted in the past and took the Court to DZADC (supra) where his Honour Judge Raphael stated at [16]:
16. However, simply to make a finding about what occurred in the past is not enough to satisfy the real chance test as elaborated in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.3. As the High Court opined in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ, the essence of the real chance test propounded in Chan is the process of looking to the future. Such a process has not been effectively engaged in the present case. As a counterpoint, where a Tribunal finds that no past persecution has occurred, as the Reviewer found in this case, it is not then required to consider the claims of past persecution when considering the real chance test: MSXSA v Minister [2010] FCAFC 123. It follows that a finding as to past events alone will not satisfy the real chance test, and indeed, in MSXSA the Full Court also noted that the real chance test “requires a decision-maker to engage in a degree of speculation about future events.” (At [94]). In SBZF v Minister for Immigration and Citizenship [2008] FCA 1486, Lander J opined at [51]–[52]:
However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499.
In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act.
In my opinion, the same must be said of the present case. The Reviewer did not go the extra step of explaining why his finding that nothing had happened in the past meant that nothing would happen in the future.
(emphasis added)
The applicant submits that the same error, as identified by Judge Raphael, has been made in the current matter. The question that must be answered is did the Tribunal, despite finding that the applicant had not suffered persecution in the past for his political opinion, consider any future harm the applicant may face. The applicant argues that the Tribunal failed to make a finding on the possibility of future persecution
The Minister argues that the word “would” in [29] and [30] of the Tribunal’s Decision Record denotes an action of a future tense. In making its finding, the Tribunal held the applicant’s real chance of risk in the past and the future. At [29] it states:
a)Past tense - “As I am not satisfied that the Applicant was ever harmed for his political opinion in support of the UNP in the past,”; and
b)Future tense – “… I am not satisfied he would suffer harm for such a reason on return to Sri Lanka.”
The Tribunal also summarises the findings at [39] headed Summary and states:
39. … I [am] not satisfied he has a well-founded fear of persecution for a Convention reason should he return to Sri Lanka, now or in the reasonably foreseeable future…
(CB 268)
I am not satisfied that the Tribunal failed to consider whether the applicant would face persecution based on his political opinion if he were to return to Sri Lanka. As a consequence of this finding Ground One cannot be sustained.
Turning to Ground Two, the applicant argued that the Tribunal failed to consider the applicant’s claim for complementary protection and therefore failed to comply with its obligation to review the decision. Ms Graycar argued that the Tribunal’s account of the claim for complementary protection is bound up in the findings that the applicant did not have a well-founded fear of persecution for a Convention reason. At [39] of the Decision Record the Tribunal found:
39. …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 Sri Lanka that there would be a real risk he would suffer significant harm.
(CB 268)
Then at [41], the Tribunal stated:
41. 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).
(CB 268)
The applicant argues that it is not necessarily an error to reject a claim for complementary protection for the same reasons as rejecting a claim for a well-founded fear of persecution. Ms Graycar argued that it is not necessarily an error to reject a claim for complementary protection, but it will be held an error if the central element of the applicant’s claim, in this case being the fear of persecution based on support for the opposition political party. Ms Graycar argued that this claim was of itself not considered and the same reasons then cannot be relied upon in satisfying the Court that a claim for complementary protection was properly considered.
The Minister argues that the Tribunal had no obligation to consider complementary protection separately in circumstances where the Tribunal had rejected the factual foundation for the claim.
His Honour Judge Driver in SZSTZ v Minister for Immigration & Anor [2015] FCCA 93 noted his previous decision in SZSFK (supra) and contrasted that decision with his Honour Judge Raphael’s decision in SZRZN v Minister for Immigration & Anor [2013] FCCA 510 in respect of dismissing claims under the complementary protection provisions. Judge Driver held in SZSTZ (supra) at [64]-[66]:
64. In SZSFK v Minister for Immigration, I considered a case where the Tribunal gave very brief reasons for dismissing claims for complementary protection. I found, at [97], this was an error because:
a. the Tribunal’s reference to the absence of “systematic” harm suggested that the Tribunal may have misconstrued the test applicable under s.36(2)(aa); and
b. the Tribunal’s findings in respect of the refugee claims were not sufficient to deal with the complementary protection claims in circumstances where the Tribunal had accepted the applicant was harmed but that such harm did not have a Convention nexus.
65. The decision in SZSFK was distinguished by Judge Raphael in SZRZN v Minister for Immigration & Anor [2013] FCCA 510. His Honour held at [27]:
It is my view that the instant case can be distinguished from SZSFK because the factual finding made by the Tribunal in respect of the cause of the applicant’s beating was clearly a personal matter that only had the most tenuous links to the Convention. The possibility of the harm reoccurring was considered in detail. It was dismissed for reasons of lack of Convention nexus upon the basis of evidence given at the hearing. The assessment of that evidence left the Tribunal in little doubt that no harm would come to the applicant should he be returned to Jordan. This finding has already been used by me to indicate a consideration of both the test under s. 36(a) and 36(2)(aa). Whilst I agree with Judge Driver that more should be done by these Tribunals to indicate they have clearly made a determination upon the evidence in relation to s.36(2)(aa) by reference to that sub-section’s specific tests, I believe that in this case the failure is more one of form than one of substance.
66. Thus, where the Tribunal makes findings in respect of an applicant’s refugee claims which undermine the factual basis for any complementary protection claims, it is not necessary for the Tribunal to repeat its findings when considering the same facts which are said to give rise to claims for complementary protection.
(emphasis added) (footnote omitted)
See also SZSGA (supra) per Robertson J at [56]-[57].
In the current matter the Tribunal was not satisfied that the applicant was a person to whom Australia owned protection obligations. The Tribunal considered the complementary protection claim by way of an expression of a conclusion rejecting the claims at [39] of the Decision Record. The Tribunal rejected the factual foundation for the applicant’s claim and was under no obligation to consider the complementary protection claim separately.
The “WZAPN” Issue
This matter came before the Court for hearing on 30 June 2014. Judgment was reserved. Consequently, as other proceedings addressing this specific issue had requested the reserved judgment not be finalised until the High Court decision was known, I have adopted that approach for this current matter.
On 3 September 2014, the Federal Court of Australia delivered judgment in the matter WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 per North J.
On 1 October 2014, the Minister filed in the High Court of Australia an Application for Special Leave to Appeal from the judgment of North J in WZAPN (supra).
Failed Protection visa applicants of Tamil ethnicity returning to Sri Lanka voluntarily or by escort on temporary travel documents from a Western country will be questioned by the authorities and may be arrested and held on remand for a few days whilst waiting for a court appearance facing charges including possible breaches of the Immigration and Emigration Act 1949. Various country reports together with a Sydney Morning Herald article of 8-9 December 2012 indicate that people are detained possibly for 3 days after which they are bailed for a future court appearance. The hearing may levy a fine based on a law of general application relating to illegal departure from Sri Lanka. Country information indicates that there is some evidence demonstrating that the law is discriminatorily applied to people of Tamil ethnicity. As the entry point is usually Colombo, remand would be served in Negombo Prison which is cramped and unsanitary. The question arises as to whether being questioned, detained for up to 3 days and significant fines are of the type and seriousness of harm amounting to persecution as meant by s.91R of the Migration Act.
In WZAPN (supra), North J held that the application of s.91R did not permit a quantitative assessment of the nature of the harm required to be considered by that section. His Honour described the approach taken by the Reviewer at [18], where he states:
18. The reviewer accepted that there was a real chance that the applicant would be questioned periodically and probably detained for short periods when he failed to provide identification, but held that the frequency and length of the detention, and the nature of the treatment he would receive in detention, did not amount to serious harm within s 91R(2)(a), (b) or (c). The reviewer concluded that on this analysis, the nature of the detention was not sufficiently significant and thus did not constitute serious harm … In approaching the matter in this way, the reviewer made a qualitative assessment of the nature of the harm caused by the detention.
The argument was recorded by his Honour as:
20. The applicant contended in his original written submissions, and in oral submissions, that the reviewer wrongly applied a qualitative assessment to the nature of the harm. The applicant argued that s 91R(2)(a) is concerned with the threat, in the sense of a risk, of harm to life and liberty, whatever the nature of the harm. Whether there is a threat depends on an assessment of the likelihood of harm happening. But once that threat is established, s 91R(2)(a) operates so that the threat to life or liberty amounts to serious harm irrespective of the nature or extent of the potential harm to life or liberty. Thus, there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. Consequently, once the reviewer found that the applicant was at risk of detention, serious harm was established within the meaning of s 91R(2)(a) irrespective of the significance of the circumstances attending the detention.
That argument was accepted by his Honour at [30], [44] and [45] where his Honour stated:
30. The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.
…
44. In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.
45. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.
North J’s decision in WZAPN v Minister for Immigration and Border Protection (supra) has been considered in the following Full Federal Court decisions;
a)SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 per Robertson, Griffiths and Mortimer JJ;
b)BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 per Robertson, Griffith and Mortimer JJ; and
c)SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 per Robertson, Griffith and Mortimer JJ.
After a detailed consideration of the approach of the construction of s.91R and to the test in s.91R(1) and (2) their Honours found in SZTEQ at [58]-[60]:
58. Another aspect of the structure of s 91R(1), which we have touched on above, concerns the fact that it contains three separate and cumulative conditions for persecution to be established for the purposes of the Migration Act and the regulations, of which the requirement of serious harm is only one. We acknowledge that matters such as the length of detention, its frequency, purpose and character may also arise in determining whether the reason for the detention, which must be a Convention reason, is the essential and significant reason for the persecution (as required by s 91R(1)(a)) or involves systematic and discriminatory conduct (as required by s 91R(1)(c)). However, this does not mean that such matters may not also arise for consideration and evaluation in relation to the requirement of serious harm within s 91R(1)(b).
59. Unlike North J in WZAPN, we do not consider the absence of adjectival qualification in s 91R(2)(a) to be of significance, given the context of the provision as a whole. Rather, the absence of an adjective indicates that a threat to “liberty“ is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning. In this context, “liberty“ is a nuanced concept which takes its meaning from the context in which it appears, namely the requirement that the persecution involve serious harm, as is made clear in s 91R(1).
60. With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397:
… the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.
In the conclusion of SZTEQ at [154]-[155], their Honours state:
154. For the above reasons, and with great respect to North J, we do not consider that WZAPN correctly decided the construction of s 91R(2)(a). In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s 91R(1)(b) and Art 1A(2).
155. As the above analysis has sought to show, even if there was no error in his Honour’s examination of ss 91R(1) and (2) and the Convention concept of persecution by reference to “international human rights standards“ (see his Honour’s reasons at [43]), an issue which need not be determined in this appeal, contrary to his Honour’s reasoning, neither those standards, nor the jurisprudence and commentary about those standards in refugee decision-making supports the proposition that any deprivation of liberty must constitute serious harm for the purpose of the Convention.
On 17 June 2015 the High Court unanimously allowed an appeal from the Federal Court: see Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22. It also unanimously dismissed an appeal from the Federal Court which was WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82. The High Court held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself and without more, a threat to liberty within the meaning of s.91R(2)(a) of the Migration Act.
Conclusion
None of the grounds of review contained in the application nor any oral submission made by the applicant at the hearing reveals any error of law on the part of the Tribunal. Further, on a fair reading of the Court Book and, particularly, the Tribunal’s Decision Record no error is apparent. Consequently, the application should be dismissed and the applicant ordered to pay the Minister’s costs.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
0