SZSXC v Minister for Immigration
[2015] FCCA 1659
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSXC v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1659 |
| Catchwords: MIGRATION – Application seeking 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 – consideration of WZAPN issue – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a) ,36(2)(aa), 36(2B)(c), 91R |
| Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82 |
| Applicant: | SZSXC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1193 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 7 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the First Respondent: | Mr J Knackstredt |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The Application filed on 29 May 2013 and amended 25 July 2013 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1193 of 2013
| SZSXC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in this Court on 29 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 1303005, a decision of Tribunal Member C. Wilson dated 1 May 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the Minister filed on 27 June 2013 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”. The Minister also filed the affidavit of Alissa Maree Crittenden sworn on 14 August 2013 and filed on 15 August 2013 (the “Crittenden Affidavit”).
The applicant was granted leave on 20 June 2013 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely. The applicant filed:
a)An amended application on 25 July 2013;
b)The Affidavit of Farid Varess affirmed on 25 July 2013 and filed on the same day (the “Varess Affidavit”);
c)Written submissions on 20 February 2014; and
d)Supplementary written submissions on 29 October 2014.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant was born on 4 April 1992 and is a citizen of Sri Lanka (CB 35-36).
On 15 May 2012, the applicant arrived in Australia as an irregular maritime arrival (CB 7, 36). He was permitted to, and subsequently did, apply for a Protection visa from the Department of Immigration and Citizenship (the “Department”) (CB 23-101). In that application (which was made on 14 September 2012), the applicant claimed to have a well-founded fear of persecution in Sri Lanka based upon his claims that he would be mistreated because of his Tamil ethnicity, because he had been charged with supporting the Liberation Tigers of Tamil Elam (the “LTTE”) and because he was a failed Tamil asylum seeker (CB 24, 50-54).
The applicant was invited to an interview by a delegate of the Minister, which he attended on 20 September 2012 (CB 118).
On 3 January 2013, the Minister’s delegate:
a)Accepted that the applicant’s claims for protection fell within the Convention grounds of race, imputed political opinion and membership of a particular social group (CB 123); but
b)Refused the application on the basis that the applicant did not have a well-founded fear of persecution in Sri Lanka for those reasons or face a real risk of significant harm if he were to return there (CB 124-126).
On 22 January 2013, the Tribunal received an application for review of the decision of the Minister’s delegate (CB 129-153).
On 13 February 2013, the Tribunal sent the applicant an invitation to a hearing, which was scheduled to take place on 27 March 2013 (CB 165-167). On 25 March 2013, the applicant’s representative submitted a lengthy written submission, which set forth further detail about his claims and took issue with the delegate’s findings (CB 176-222).
On 27 March 2013, the applicant and his representative attended a hearing before the Tribunal (CB 223-224).
On 12 April 2013, the applicant’s representative submitted a further submission in support of the applicant’s claims (CB 226-231).
On 1 May 2013, the Tribunal affirmed the decision of the Minister’s delegate for the reasons set out below (CB 232-248).
The Tribunal’s decision
In its Decision Record, the Tribunal set forth a detailed summary of the claims made by the applicant in his Protection visa application as well as relevant independent country information (CB 239-247).
The Tribunal found that there was no chance that the applicant would suffer serious harm if returned to Sri Lanka on account of his Tamil ethnicity, imputed political opinion or because he was a failed asylum seeker (CB 243 at [34]). It found that the main motivator for the applicant in leaving Sri Lanka was to make a better living in Australia (CB 241 at [30]).
The basis of the Tribunal’s finding that there was no real chance that the applicant would suffer serious harm if returned to Sri Lanka can be summarised as follows:
a)The Tribunal doubted or did not accept the veracity of many of the applicant’s claims, including that:
i)He was taken to an army camp on two or three occasions and made to do work such as cutting grass or loading metal sheets (CB 240 at [25]);
ii)The Criminal Investigations Department of Sri Lanka (the “CID”) had visited his family’s home on a regular basis since the applicant had left Sri Lanka in April 2012 and had held a gun to the applicant’s brother-in-law’s head in January 2013 in order to force him to disclose the applicant’s location (CB 240-241 at [27]-[29]); and
iii)He was prevented by the CID from working in Colombo airport because of his Tamil ethnicity (CB 241 at [30]);
b)The allegations made by the applicant, namely, being required to work at an army camp and having difficulty in obtaining his preferred work, did not constitute serious harm within the meaning of s.91R of the Migration Act (CB 240 at [24]-[26]);
c)The Tribunal considered that the applicant was an ordinary Tamil with no profile or anything to indicate that he would be of interest to the authorities as a result of any association with the LTTE (CB 242 at [32]-[33]). The Tribunal found that the only reason that the applicant was charged with being associated with the LTTE by the CID was as a means of prolonging his detention and not because he was imputed with being a supporter of the LTTE (CB 242 at [33]); and
d)Whilst the applicant would likely be detained upon his return to Sri Lanka, the laws relating to illegal departures from Sir Lanka would not be applied to the applicant in a discriminatory manner and there was no real chance that the applicant would suffer serious harm upon his return by reason of his having left Sri Lanka illegally or being a failed asylum seeker (CB 246 at [44]-[45]).
The Tribunal also found that the applicant did not satisfy the complementary protection requirements in s.36(2)(aa) of the Migration Act. In particular, on the basis of the factual findings referred to above, the Tribunal was not satisfied that 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 suffer significant harm (CB 248 at [57]).
As a result of its findings, the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a Protection visa (CB 248 at [61]).
Current Proceedings
The further amended application pleads the following grounds:
The Tribunal engaged in jurisdictional error by making a finding in the absence of evidence or by making a finding without taking into account a relevant consideration.
Particulars
a. The Tribunal found that, based on the country information accepted by it, it did not accept that an ordinary Tamil would face a real risk of significant harm (Tribunal’s Decision at [55]);
b. Country information accepted by the Tribunal included the “Country Policy Bulletin Sri Lanka” prepared by the UK Home Office in October 2012. This report included evidence to the effect that police in Sri Lanka issued fabricated charges and engaged in torture to extract confessions, and that the victims were selected on a random basis;
c. In view of the evidence referred to in subparagraph (b), the Tribunal made the finding identified in subparagraph (a) in the absence of evidence;
d. Further and in the alternative, the Tribunal made the finding identified in subparagraph (a) without taking into account a relevant consideration, namely the evidence in the country information accept by it identified in subparagraph (b).
2. The Tribunal engaged in jurisdictional error by making a finding without taking into account a relevant consideration, or by failing to consider a claim (or component integer thereof).
Particulars
a. The applicant claimed and the Tribunal accepted that the applicant was accused and charged of being an LTTE member or supporter;
b. The Tribunal found that the charge was a false charge made in order to lengthen his detention and implicitly accepted the applicant’s claim that this led to a trial and his detention in jail for 45 days (or alternatively failed to consider the claim in this regard);
c. The applicant claimed that he was physically abused and seriously mistreated while he was detained by the CID and while in jail. The Tribunal implicitly accepted these claim or, in the alternative, failed to consider them;
d. The applicant claimed, and the Tribunal accepted, that the ‘CID’ searched for the applicant after he left Sri Lanka in April 2012;
e. The past experiences of the applicant cited in subparagraphs (a)-(d) above were relevant to the question as to whether the applicant faced a real risk of suffering significant harm for the purposes of s 36(2)(aa) of the Act (Tribunal’s Decision, [52]-[57]), however, the Tribunal failed to take any of them into account (instead, focusing exclusively on the common experiences of Tamil failed asylum seekers as per the country information accepted by it).
3. The Tribunal engaged in jurisdictional error by failing to take into account a relevant consideration or by engaging in arbitrary decision making.
Particulars
a. A material question considered by the Tribunal was the weight to be attributed to a September 2012 Report from ‘Freedom from Torture’ and an August 2012 Report from Human Rights Watch (Tribunal’s Decision, [41]-[42]);
b. The applicant made a clearly articulated submission that these reports were to be regarded as credible because:
i. The UK High Court had on 25 October 2012 issued an injunction on the basis of the ‘Human Rights Watch’ Report to stop the forced deportation of 7 Tamil men back to Sri Lanka;
ii. As at 19 September 2012, two UK High Court injunctions had been granted on the basis of the ‘Freedom from Torture’ Report;
c. The Tribunal rejected the credibility of these reports on the basis of an October 2012 report prepared by the UK Home Office, which in part relied on findings made by the ‘Upper Tribunal’ of the ‘Immigration and Asylum Chamber’, without addressing the submission or the UK High Court decisions referred to in subparagraph (b).
d. In doing so, the Tribunal either:
i. Failed to take into account relevant considerations (namely the submission and the UK High Court decisions referred to in subparagraph (b)); or
ii. To the extent that it had considered these matters, it preferred the views of the UK Home Office and the ‘Upper Tribunal’ of the ‘Immigration and Asylum Chamber’ over that of the UK High Court on an arbitrary basis.
4. The Tribunal engaged in error by misconstruing or failing to consider a claim or component integer thereof.
Particulars
a. The applicant clearly articulated a claim (or it was otherwise squarely raised in the material) to the effect that he:
i. Had been falsely charged by the ‘CID’ on suspicion of being a supporter / sympathiser / member of the LTTE;
ii. He was tried at the Local Court in Colombo with offences including ‘on suspicion of being a supporter / sympathiser / member of the LTTE’;
iii. After the Court trial, he was imprisoned at the Welikada Prison for 45 days.
b. The Tribunal failed to deal with the claims as described in subparagraph (a) above.
5. The Tribunal engaged in jurisdictional error by making a finding in the absence of evidence, that was irrational or illogical, or without taking into account a relevant consideration.
Particulars
a. The Tribunal found that the applicant was an ordinary Tamil with no profile or anything to indicate that he would be of interest to the authorities, apart from his having tried to leave Sri Lanka on an earlier occasion;
b. However:
i. The applicant claimed, and the Tribunal accepted, that the applicant was accused and charged of being an LTTE member or supporter;
ii. The Applicant claimed, and Tribunal implicitly accepted, the applicant’s claim that this led to a trial and his detention in jail for 45 days;
iii. The applicant claimed, and the Tribunal accepted, that the ‘CID’ searched for the applicant after he left Sri Lanka in April 2012;
c. In view of the findings accepted by the Tribunal as described in subparagraph (b), the finding described in subparagraph (a) was made in the absence of evidence, was irrational or illogical, or otherwise made without taking into account a relevant consideration.
6. The Tribunal committed jurisdictional error by failing to deal with a claim, or a component integer thereof, before it.
Particulars
a. There was a claim before the Tribunal to the effect that the application would face persecution or significant harm (including physical harm) during the interrogation process to which he would be subject upon his return to Sri Lanka.
b. Further, the Tribunal accepted that the applicant had been physically mistreated when he was detained by Sri Lankan authorities on his first attempt to leave Sri Lanka and that, upon his return on this occasion, he would be questioned and detained;
c. The Tribunal, however, failed to deal with whether, during the questioning and detention process, the applicant in particular would be subjected to physical mistreatment (as he had in the past) amounting to persecution or significant harm. In so doing, the Tribunal failed to consider the claim referred to in (a) and engaged in jurisdictional error.
7. The Tribunal engaged in jurisdictional error by misconstruing the applicable law or a failure to apply the right test.
Particulars
a. At CB246 [44]-[45], the Tribunal found that:
i. Being detained for a few days and being fined did not amount to serious harm as required by s 91R(1)(b) of the Act;
ii. Being fined did not amount to serious harm as required by s.91R(1)(b) of the Act;
iii. The detention was pursuant to a law of general application which was not being applied in a discriminatory manner.
b. In approaching the matter as set out in subparagraph (a), the Tribunal misconstrued the applicable law or failed to apply the right test because:
i. Detention for any period necessarily amounts to persecution as defined by s 91R(1)(b) of the Act: WZAPN v MIBP [2014] FCA 947 at [30] and [45] per North J;
ii. Further and in the alternative, being fined was capable of amounting to persecution if it affected the person’s capacity to subsist or the applicant would be subject to persecution if he was unable to and did not pay it. The Tribunal accordingly erred by finding that the fine did not amount to persecution without making a finding as to the amount of the fine and then asking itself whether a fine in that amount affected the applicant’s capacity to subsist and whether the applicant would be subject to persecution if he was unable to and did not pay it;
iii. Further and in the alternative, where persecution is said to arise from the application of a law of general application, the Tribunal must ask itself whether, and find that, the law is appropriate and adapted (in the sense of proportional) to achieving a legitimate object before it can lawfully find that the application of the law does not amount to persecution (which the Tribunal failed to do).
Applicant’s Submissions
The findings concerning the UK Home Office report (ground 1)
In SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133, the Tribunal rejected the applicant’s credibility on the basis of a finding that no organization called the Khalistan Liberation Army existed because it was not referred to in country information before it. However, the country information did in fact refer to such an organization. The Federal Court, accordingly, held that the Tribunal’s finding was not open to it and it engaged in jurisdictional error. See [7]-[10] in particular.
In Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50, the Tribunal rejected a claim that the applicant feared persecution as a Jew in Kyrghyzstan because of the absence of any mention of either an event or an attitude that would support the applicant’s claim that he was and would be persecuted as a Jew in Kyrghyzstan in a particular report. The report, however, did in fact contain some material supportive of the applicant’s claim. The Court held that the Tribunal’s decision was vitiated by jurisdictional error either because there was no evidence for its finding or because it failed to take into account a relevant consideration. See [5]-[13] per Wilcox, French and Finkelstein JJ in particular.
In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402, the applicant claimed to fear persecution by the Taliban were he to return to his home region in the north of Oruzgan in Afghanistan. This was rejected by the Tribunal on the basis, inter alia, that the area where the applicant lived was under the de facto or de jure control of Karim Khalili, a Hazari leader from the adjoining province of Bamian and, although there were reports of Taliban/al Qaeda in Oruzgan, those reports referred to areas that are not close to or accessible to the part of the province where the appellant lives. As stated by the Full Court (at [25]):
“The difficulty with all this is that there is no material that either party could point to that would support the factual conclusions (b) and (c). On the other hand, there is information that is clearly to the contrary.”
The Full Court went on to find that there was no evidence to support the Tribunal’s finding and, accordingly, the Tribunal’s decision was vitiated by jurisdictional error. See [18]-[30] per Mansfield, Selway and Bennett JJ in particular.
In the present case, the rejection of the complementary protection claims was on the basis of the Tribunal’s acceptance of assessments by DFAT and the UK Home Office that “Tamil failed asylum seekers are not commonly mistreated upon return” ([54]).
The UK Home Office report is at Annexure “A” to the Varess Affidavit. Notably, there are a number of references in the report to the police in Sri Lanka issuing fabricated charges and engaging in torture to extract confessions and that the victims are selected on a random basis (e.g. [4.2], [4.7], [5.1]) and the author of the report concludes that “in general the acts of torture are random and usually used to extract confessions” ([13.1]). Having regard to the content of the report, apparently accepted by the Tribunal, it cannot be said that the report provided a proper basis upon which the Tribunal could have found that the report amounted to an assessment that Tamil failed asylum seekers are not commonly mistreated upon return (i.e. a finding in the absence of evidence) or, in the alternative, in making its finding the Tribunal failed to take into account a relevant consideration (being the content of the report directed to the use of torture by police on a random basis).
Further, in view of the content of the report, the Tribunal failed to take into account a relevant consideration when rejecting the claim that a Tamil with no connection to the LTTE has a real risk of suffering significant harm. The report, accepted by it, pointed to the use of random torture by police to extract confessions and for extortion purposes and, therefore, the exposure of persons unconnected to the LTTE being placed at risk of such harm. By uncritically accepting this material and by not dealing with it in the context of this finding, it engaged in jurisdictional error.
The failure to deal with the Applicant’s refugee convention claims (ground 4)
It is well accepted that a failure to take into account a relevant consideration amounts to jurisdictional error (Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1985) 162 CLR 24 at 39). The ground must be one that the decision maker is bound to take into account, having regard to the statute in question (Peko-Wallsend at 39). This will include claims articulated by an applicant or otherwise raised by the evidence and material before it. As stated by Allsop J (as he was then) in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 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 of 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.”
It also extends to claims raised by the material or evidence before the Tribunal (Htun (supra) at [7], [13] per Merkel J and [42] per Allsop J; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [63] per curiam).
The applicant’s claim that he had a well-founded fear of persecution as a Tamil/for an imputed political opinion was based on, inter alia, the following component integers:
a)On 6 January 2012, following his failed attempt to leave Sri Lanka, the CID charged him with being an LTTE supporter/sympathiser/member;
b)On 9 January 2012, he was taken to the Colombo Local Court and charged with being an LTTE supporter/sympathiser/member. To the best of the applicant’s knowledge, the case was still pending;
c)He was physically abused and seriously mistreated when he was arrested and by the CID, and detained for 45 days in Welikada prison;
d)While on bail and subject to reporting requirements to the CID, he left Sri Lanka illegally. The CID searched for him in April 2012 and ascertained his whereabouts.
Factually, the Tribunal accepted the events claimed above, but it failed to go on to address the critical question as to how these events bore upon the central question as to whether the applicant held a well-founded fear of persecution.
The Tribunal’s reasoning on the Tamil/imputed political opinion claim is contained at CB 240 at [24]-[34] and is premised upon the Tribunal’s finding at [31]-[32] that the applicant was not a person suspected of links with the LTTE, and that the applicant was an ordinary Tamil with no profile or anything to indicate that he would be of interest to the authorities. In respect of the charges against the applicant, the Tribunal concluded that he was charged to prolong his detention rather than because of real evidence or a belief that he was an LTTE member or supporter.
This reasoning reveals error because:
a)There is no consideration as to whether the fleeing from Sri Lanka whilst on bail would affect his profile, particularly in view of the accepted claim that the CID came looking for him. The Tribunal’s description of the applicant as an ordinary Tamil ‘with no profile or anything to indicate he would be of interest to the authorities’, rather, suggests that this component integer was overlooked;
b)The Tribunal’s approach as to the charges laid against the applicant sidesteps consideration of the claim. Whether or not the CID officers who charged him had evidence or believed that he was an LTTE member does not dispose of the fact that charges were laid and that there were pending proceedings against the applicant for being a suspected supporter of the LTTE which might ultimately result in a conviction. At no stage did the Tribunal deal with the question as to whether there was a real chance of the applicant being convicted of the offence and, if so, whether a conviction as a LTTE supporter would lead to him holding a different risk profile and attracting persecution (and plainly the evidence accepted by the Tribunal suggests that the answer is ‘yes’). The prospect of a person who is charged with a criminal offence, who absconds, being convicted of that offence in absentia is not so remote that it can simply be disregarded without any consideration irrespective of the motivations of the officers charging him. However, this is precisely what the Tribunal did.
c)The Tribunal erroneously focuses on what the applicant’s profile is (at [32]), rather than what his profile would be in the reasonably foreseeable future. It looks to the motivation of the officers charging him, the fact of his release and his obtaining of a passport, which are all matters grounded in the past. It does not deal with subsequent occurrences that go to his future risk profile, such as his absconding while on bail, the CID searching for him and the prospects of being convicted as an LTTE member or supporter.
The failure to deal with the Applicant’s complementary protection claims (ground 2)
Similarly, the Tribunal’s analysis of the applicant’s complementary protection claim is premised upon an assumption that the applicant is an ‘ordinary’ Tamil and it fails to address the component integers of the applicant’s claim going to that question.
The Tribunal merely assumes that the applicant is an ‘ordinary’ Tamil at [55], without addressing:
a)The applicant’s claim that he was on bail and subject to reporting requirements when he illegally left Sri Lanka;
b)That the CID looked for the applicant immediately following his departure; and
c)That the applicant had been charged by the CID with being a suspected LTTE supporter and that the Local Court proceedings were continuing (which could result in a conviction and whatever punishment flows from such a conviction).
These are central component integers of the applicant’s claim, accepted by the Tribunal, that bear directly upon whether he fell into the category of ‘ordinary Tamil’. The Tribunal, however, did not consider whether these matters would adversely affect the applicant’s risk profile such that he would attract persecution now or in the reasonably foreseeable future. As stated in Minister for Immigration and Border Protection v MZYTS & Anor (2013) 136 ALD 547 at [34]:
“... lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well-founded.”
Further, the focus by the Tribunal on how ordinary failed Tamil asylum seekers are ‘commonly’ treated amounts to a failure to deal with the claim because dealing with the claim requires analysis as to whether there is a real risk of significant harm to the applicant rather than whether significant harm commonly occurs. To merely ask whether or not the claimed mistreatment is common does not amount to consideration of a claim in the manner required pursuant to its statutory obligations.
Failure to deal with the inconsistent country information before it (ground 3)
In the present case, the Tribunal had, on the one hand, reports from Human Rights Watch and Freedom from Torture that pointed to the use of arbitrary arrest and torture on returnees (CB 244-245 at [41]-[42]). However, on the other hand, it had reports from DFAT and the UK Home Office that the Tribunal regarded as going against these reports (CB 245 at [43]). The Tribunal preferred the latter reports. Obviously, what country information a Tribunal prefers is a matter for it, however, where the information before it is contradictory, it at least needs to provide some reasoning as to why one is to be preferred over the other. This is particularly the case where there is an express submission by the applicant as to why the former is to be preferred. The Tribunal in the present case, however, simply preferred the latter reports without any reasoning process.
That is an error is apparent from the recent Full Court decision of MZYTS (supra) where the Full Court closely considered the extent of a Tribunal’s obligation to deal with country information in the context of its statutory duty. The Full Court held that the Tribunal engaged in jurisdictional error by simply accepting certain country information before it without dealing with contradictory country information advanced by the applicant. It was held that this amounted to a failure to form the satisfaction required by s.36(2)(a) of the Migration Act, being its jurisdictional task.
At [50] in MZYTS, the Full Court stated:
50. … The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given.
This analysis is apposite to the present case. The Tribunal merely stated a preference for the DFAT and UK Home office information. Its reasons ‘disclose no process of weighing evidence and preferring some over the other’ nor ‘an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given’. In the circumstances, it did not lawfully form the satisfaction required by s.36(2)(a) and, accordingly, engaged in jurisdictional error.
Illogicality/irrationality/failure to take into account a relevant consideration (ground 5)
As stated above, the Tribunal accepted that the applicant:
a)Had been charged with being a suspected LTTE member, supporter or sympathiser by the CID;
b)The charges had been laid before the Colombo Local Court and the case was continuing;
c)He had illegally departed from Sri Lanka while on bail and subject to reporting requirements and his departure had led to the CID searching for him.
In the circumstances, it was entirely illogical for the Tribunal to find, as it did, that the applicant was an ordinary Tamil with no profile or anything to indicate that he would be of interest to the authorities, apart from his having tried to leave Sri Lanka on an earlier occasion. Plainly, on its own findings, both the CID and the Local Court had an extant interest in the applicant for reasons going well beyond his prior attempt to leave Sri Lanka. In those circumstances, the decision was “one at which no rational or logical decision maker could arrive on the same evidence” in the sense referred to by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at [130].
Further and in the alternative, the Tribunal, in reaching this finding that the applicant was an ordinary Tamil, failed to take into account relevant considerations (being the matters accepted by it recounted at (a)-(c) above).
Whether the Applicant would face persecution or significant harm whilst in detention (ground 6)
In the Decision Record at [112]-[114] (CB 198), the applicant’s agent made an express claim that the applicant would suffer harm by virtue of the mistreatment that he would face during interrogation in determining whether or not he was associated with the LTTE. The agent referred to SZQPA v Minister for Immigration & Anor [2012] FMCA 123 at [29], were the Court found jurisdictional error where there was a failure to consider whether the relevant degree of harm would be inflicted during the process of interrogation undertaken to determine whether the applicant was a person of adverse interest. An appeal by the Minister was dismissed by the Federal Court in Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292 at [45] per Gilmour J.
In this case, the Tribunal held that the applicant would be subjected to questioning upon his return (CB2 46 at [44]; CB 247 at [54]), however, it did not deal with what that questioning process involved despite country evidence before it (such as the UK Home Office report accepted by it discussed above) that indicated the use of torture as an interrogation tool. It may well be that following the questioning process the applicant would not be considered to be a person of adverse interest to the authorities, however, the Tribunal failed to consider whether the process of questioning itself would involve persecution or significant harm before that stage was reached.
This is particularly problematic in the present case, given that, upon return, on the facts as found by the Tribunal the applicant would present as a person charged with (and possibly convicted of) being an LTTE member, sympathiser or supporter who had absconded whilst on bail and subject to reporting conditions and whom the CID was looking for. In these circumstances, given that the Tribunal found that the applicant would be questioned and the material before the Tribunal concerning the use of torture for questioning, it was incumbent upon it to consider whether there was a real chance that the questioning process would invoice persecution or significant harm irrespective of whether the ultimate outcome of that process would be that the applicant would not be of adverse interest.
Ground 7
The reason for the additional ground being raised at this time is that the ground flows directly from the recent decision of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (3 September 2014), whereas the Amended Application and the written submissions were prepared well before this decision was handed down. It is submitted that, in this circumstance, it is in the interests of justice for leave to be granted. The merit of the ground will be addressed below.
In WZAPN, the reviewer accepted that the applicant would be detained and questioned for short periods, but concluded that it was not persecution having regard to ss.91R(2)(a), (b) and/or (c). The Federal Court concluded that this amounted to jurisdictional error, stating:
“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.
...
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.”
This is precisely the approach adopted by the Tribunal in the present case. At [44] and [45] (CB 246), the Tribunal concluded that it “does not accept that being detained for a few days and fined amounts to serious harm as required by s. 91R(1)(b).” Having regard to the decision in WZAPN, this clearly constituted jurisdictional error.
Alternatively, the Tribunal concluded that being fined did not amount to serious harm as required by s.91R(1)(b) without having asked itself what the fine would amount to, whether the fine affected the applicant’s capacity to subsist, and whether non-payment of the fine would lead to persecution. By finding that the fine (no matter what the quantum) was not persecution, the Tribunal misconstrued the applicable law or failed to apply the right test.
It is anticipated that the Minister will seek to argue that jurisdictional error in relation to the ‘no persecution’ findings does not lead to the grant of relief because the Tribunal also found at [44]-[45] that the detention was a consequence of a law of general application that the Tribunal did not accept was being applied in a discriminatory manner, which the Minister presumably will say is an independent basis for the decision. The correct principle in this regard was state by Stone J in SZGXS v Minister for Immigration and Citizenship [2007] FCA 398 at [11] as follows:
“Provided that the other ground or grounds of decision are truly independent of the ground that is tainted by error and are themselves free of jurisdictional error then, in my view, it follows that the Tribunal had jurisdiction to make the decision it made.”
There are two answers to this.
First, it is not a truly independent basis because the proper characterisation of the detention and fine and the question as to whether a law is of general application (and, if so, appropriate and adaptive in the sense of proportionate to a legitimate object) is persecutory both go to the same issue; viz whether the detention and fine in the circumstances amounts to persecution. Further, the answer to one question might affect the answer to the other.
Second, the finding that the law was of general application and not applied discriminatory manner cannot in itself support the Tribunal’s decision because the Tribunal failed to ask itself whether the law was appropriate and adapted (in the sense of proportionate) to achieving a legitimate objective.
In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, the High Court considered the application of laws related to the one-child policy in China. McHugh J stated at 258-259 (footnotes omitted) (underlining added):
“Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race.
...
In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws. Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason. Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution. Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution. It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified. One who fled from the regime of Hitler or Pol Pot could not be denied the status of refugee even if his or her only claim to that status relied on a fear of persecution for advocating the violent overthrow of that regime.”
(Emphasis added)
In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, the High Court addressed one-child policy laws again, albeit their impact upon children born in breach of the one-child policy rather than their parents (as was the case in Applicant A). In respect of the question of persecution, Gleeson CJ, Gaudron, Gummow and Hayne JJ held (at 302-303):
“The position is somewhat more complex when persecution is said to be for reasons of membership of a particular social group or political opinion. There may be groups — for example, terrorist groups — which warrant different treatment to protect society. So, too, it may be necessary for the protection of society to treat persons who hold certain political views — for example, those who advocate violence or terrorism — differently from other members of society.
...
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.”
In Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387, in which the High Court considered forcible conscription laws in Afghanistan (the particular social group was ‘able bodied young men in Afghanistan’). Gleeson CJ, Gummow and Kirby JJ said (at 402–403) (citations omitted):
“A law of general application is capable of being implemented or enforced in a discriminatory manner.
The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen. As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court’s decision in Israelian. Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective.
In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.”
In VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332, the Federal Court dealt with a Tribunal decision in which it had found that China’s one child policy laws were not discriminatory because they applied to all citizens equally and were directed at a legitimate purpose, namely, limiting population growth. The Tribunal had further held that the financial penalties were serious but did not amount to persecution. The Court held that the Tribunal committed jurisdiction error. In particular, Merkel J stated (underlining added):
“38. It may be accepted that the family planning laws, in so far as they relate to parents, are laws of general application in the sense that, although they may vary from province to province, in general, they give effect to China’s one-child policy by penalising parents who have more than one child. However, as was pointed out in Chen at CLR 301; ALR 559; ALD 327 [21], even general laws that are apparently non-discriminatory may impact differently on different people and, thus, operate discriminatorily. Also, the selective enforcement of such laws may result in discrimination.”
...
47. The RRT did not enquire whether the harm feared by the applicant parents was appropriate and adapted to achieving the legitimate object of population control. That issue is to be determined by reference to ‘the standards of civil societies which seek to meet the calls of common humanity’: see Chen at CLR 303; ALR 560; ALD 328 [29]. ... A law of general application mandating the imposition of severe penalties on the mother irrespective of her personal circumstances may be regarded as a measure that, according to the standards of civil societies, is not appropriately adapted to achieving a legitimate object.”
Similarly, in Minister for Immigration and Citizenship v SZNWC & Anor (2010) 190 FCR 23 at [45]-[51] and [53]-[57] per Perram J (with whom Moore J agreed), the Full Court found jurisdictional error where the Tribunal held that there was a law of general application aimed at a legitimate object that was not discriminatory, but failed to consider where the law was appropriate and adapted. See also Buchanan J on this issue at [34] (although he dissented for reasons not presently relevant).
See also Erduran v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 150 per Gray J and SZMFJ v Minister for Immigration and Citizenship & Anor (No. 2) (2009) 107 ALD 134 per Jagot J (applying Erduran at [10]), where it was established that it is jurisdictional error to assume that the non-discriminatory enforcement of a law of general application cannot fall within the Convention.
In the circumstances, the Tribunal’s decision is affected by jurisdictional error and the relief sought should be granted.
Conclusion
For the above reasons, the applicant submits that the application should be upheld with costs.
Minister’s Submissions
Ground 1: Finding made in the absence of evidence or without taking into account a relevant consideration
Under this ground, the applicant seeks to impugn the finding made at [55] of the Decision Record (CB 247) that, based on the country information accepted by the Tribunal, an ordinary Tamil would not face a real risk of significant harm if returned to Sri Lanka (CB 247 at [55]).
Finding made in the absence of evidence
In support of his argument, the applicant has relied upon a series of cases in which courts have found that the Tribunal made findings in the absence of evidence. However, beyond their statement of principle (that a finding made in the absence of evidence is a jurisdictional error), those cases were all determined on their specific facts and are of no assistance to the Court in this case.
The impugned finding in this case must be read in its context. A fair reading of the Tribunal’s reasons indicates that the impugned finding was made on the basis that the applicant, as an ordinary Tamil, would not face a real risk of significant harm because of his ethnicity or political opinion: see s.36(2B)(c) of the Act. That this was the basis for the Tribunal’s finding is supported by the contents of the Country Policy Bulletin issued by the Home Office UK Border Agency in October 2012 (the “Policy Bulletin”), which reports that:
a)Any detention and torture of Sri Lankan citizens is random and affects both Tamils and Sinhalese (see paragraphs 4.6 and 4.7 of the Policy Bulletin, at Annexure “A” to the Varess Affidavit. This Policy Bulletin was referred to by the Tribunal in its reasons: CB 245.4-10); and
b)There is no evidence that there is any risk on return to Sri Lanka for Tamils per se (paragraph 6.6 of the Policy Bulleting).
In those circumstances, the impugned finding cannot be said to have been made in the absence of evidence.
Finding made without taking into account a relevant consideration
The only relevant considerations are the applicant’s claims and the integers that make up those claims: Minister for Immigration and Citizenship v MZYHS & Anor (2011) 119 ALD 534, [24] (Kenny J); see also MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94, [27]-[28] (Black CJ, Sundberg and Bennett JJ); Dang v Minister for Immigration and Multicultural Affairs [1999] FCA 38, [32] (Moore J); see also Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (supra), 39-40 (Mason J). More particularly:
“… a failure to refer to, or adequately to consider, evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it may have led to an erroneous finding of fact.”: Minister for Immigration and Citizenship v MZYHS, supra, [24]..
Even if the applicant is able to establish that the Tribunal did not have regard to the Policy Bulletin (which is denied) (see CB 245.3-10), that does not satisfy the principles discussed in MZYHS and MZWBW. Instead, this complaint is more properly characterised as a complaint that the Tribunal failed to accept certain evidence, which does not give rise to jurisdictional error: Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464, [27] (French J).
In any event, this complaint fails at a factual level: as the applicant points out in particular (b) to Ground 1 of the application, the Tribunal did in fact consider, and accept, the findings in the Policy Bulletin.
The Tribunal’s reasons are not to be over-zealously scrutinised with an eye finely attuned to error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, 272-3 (Brennan CJ, Toohey, McHugh and Gummow JJ). In addition, an inference that the Tribunal has failed to consider an issue or particular evidence is “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, [47] (French (as he then was), Sackville and Hely JJ).
At [55] of the Tribunal’s Decision Record (CB 247), the Tribunal expressly referred to “country information referred to above”, which included the Policy Bulletin. In those circumstances, there is no scope for the applicant to argue that it was not taken into account.
Ground 2: Failure to take into account relevant considerations or claims
Under this ground, the applicant argues that the Tribunal failed to take into account a number of considerations or claims in finding that the applicant did not face a real risk of suffering significant harm for the purposes of s.36(2)(aa) of the Migration Act (CB 247 at [55]).
Whilst the Tribunal did not specifically refer to the matters particularised in this ground of the application in the context of its discussion about whether the applicant was entitled to complementary protection, at [55] of the Decision Record it stated (CB 247):
“For the reasons given above, the Tribunal does not accept the applicant has an imputed political opinion. On the basis of country information referred to above the Tribunal does not accept an ordinary Tamil would face a real risk of significant harm.”
The reference to the “reasons given above” includes the reasoning at [27]-[29] (CB 240-241) and [33] (CB 242) of the Tribunal’s reasons. At [27]-[29] of the Tribunal’s Decision Record (CB 240-241), the Tribunal found that it was not satisfied that the CID had continued to visit the applicant’s family’s home on a regular basis since the applicant had left Sri Lanka in April 2012. Accordingly, the allegation that the Tribunal failed to take into account the facts identified in particular (d) of Ground 2 is without foundation.
Similarly, at [33] of the Tribunal’s Decision Record, the Tribunal found that (CB 242):
a)The applicant was not arrested and detained because of a suspected association to the LTTE, but rather because he attempted to leave Sri Lanka illegally;
b)The applicant was charged as an LTTE member or supporter as a means of prolonging his detention, and not because there was any real evidence or belief that he was an LTTE member or supporter;
c)The applicant’s release from detention and the lack of serious mistreatment of him and his family since he was released indicated that the authorities did not consider him to be an actual LTTE member; and
d)The applicant would not be imputed as or considered to be a member of the LTTE if he returned to Sri Lanka in the future because of this previous charge.
Accordingly, the allegation that the Tribunal failed to take into account the facts identified in particulars (a) and (b) of Ground 2 is also without foundation.
Finally, the claim identified in particular (c) of Ground 2 was referred to by the Tribunal at [21] and [46] of the Decision Record (CB 239, 246). Whilst no express finding was made by the Tribunal in relation to that claim, it was closely connected with the matters set out at [27]-[29] and [33] of the Tribunal’s Decision Record (CB 240-241, 242): Applicant WAEE (supra) at [47]. In those circumstances, it is clear that the Tribunal did not in fact fail to take that matter into account either.
To the extent that the applicant’s submissions go beyond the case as pleaded in the amended application, they are irrelevant to this ground of review and are to be ignored. In addition, there was no evidence before the Tribunal about what effect the applicant fleeing whilst on bail would have ([34(a)] above, applicant’s submissions), nor was there any evidence that would have enabled the Tribunal to consider the likelihood of the applicant being convicted on the charges laid against him ([34(c)] above, applicant’s submissions). In any event, these matters were subsumed in the Tribunal’s more general findings.
These complaints are, in truth, complaints not about the Tribunal failing to take into account relevant considerations, but rather complaints that certain evidence was not accepted. Questions of weight and whether or not to accept or reject particular evidence are issues of merit, which are the sole province of the Tribunal: Lee v Minister (supra) at [27] (French J).
Ground 3: Failure to take into account relevant considerations and wrongfully engaging in arbitrary decision-making
Under this ground, the applicant again asserts that the Tribunal failed to take into account a relevant consideration. He also asserts that the Tribunal engaged in arbitrary decision-making. In particular, the applicant’s complaint is that:
a)The Tribunal failed to take into account the applicant’s submissions that a September 2012 Report from ‘Freedom from Torture’ and an August 2012 Report from Human Rights Watch (the “Reports”) were credible because the United Kingdom High Court had issued injunctions on the basis of those reports in September and October 2012 (The Reports are annexed to the Crittenden Affidavit); and
b)The Tribunal had preferred the views of the UK Home Office and the Upper Tribunal of the Immigration and Asylum Chamber in the Policy Bulletin over that of the UK High Court on an arbitrary basis.
The failure to refer to the UK High Court decision is not a failure to take into account a relevant consideration properly analysed. As set out at [67]-[68] above, in the context of the Migration Act, the only relevant considerations are the applicant’s claims and the integers that make up those claims.
This ground of the application is more properly characterised as a complaint that the Tribunal failed to consider evidence, namely, the decisions of the United Kingdom High Court. Although it is correct that the Tribunal’s reasons did not refer to these decisions, it is not necessary for the Tribunal to refer to all of the evidence and every submission made by the applicant in its written reasons to avoid a finding that it failed to take into account some matter: Applicant WAEE (supra) at [46] (French, Sackville and Hely JJ). In addition, a mere failure to refer to, or adequately consider, evidence, is not a jurisdictional error: Applicant WAEE (supra) at [47] (French, Sackville and Hely JJ).
Moreover, the Tribunal was not bound to draw a conclusion favourable to the applicant as a result of its consideration of any particular piece of evidence, including the Reports. Questions of weight and whether or not to accept or reject particular evidence are issues of merit, which are the sole province of the Tribunal: Lee v Minister (supra) at [27] (French J). The Policy Bulletin post-dated the Reports and provided the Tribunal with a sound basis upon which it could accept its contents. Moreover, the Tribunal’s motivation for preferring the Policy Bulletin is plain from the extracted part of the Policy Bulletin itself (CB 245.3-10). Accordingly, the decision to accept that material was not arbitrary.
Ground 4: Misconstruction of, or failure to consider, the Applicant’s claims
Ground 4 of the application alleges that the Tribunal misconstrued or failed to consider the applicant’s claim that he:
a)Had been falsely charged by the CID on suspicion of being a supporter, sympathiser or member of the LTTE;
b)Was tried at the Local Court in Colombo with offences including suspicion of being a supporter, sympathiser or member of the LTTE; and
c)After the trial, was imprisoned at the Welikada Prison for 45 days.
The applicant’s submissions appear to go well beyond the case as pleaded in the amended application. Those submissions are irrelevant to this ground of review and are to be ignored.
As set out in [75]-[76] above, the claim that the Tribunal failed to take into account the fact that the applicant was falsely charged with being an LTTE member or supporter is without foundation. Similarly, although the Tribunal did not make any determination about the applicant’s claim that he was tried and then imprisoned for 45 days, it referred to that claim at [21], [33] and [46] of its reasons (CB 239, 242, 246.). As explained above, the Tribunal’s broader findings about this aspect of the applicant’s claims were sufficient to subsume such matters of specific detail.
Ground 5: Findings in the absence of evidence, failure to take into account a relevant consideration and illogical or irrational decision-making
Ground 5 of the application alleges that the Tribunal’s finding that the applicant was an ordinary Tamil with no profile or anything to indicate that he would be of interest to the authorities was a finding made in the absence of evidence, was irrational or illogical and was the product of a failure to take into account a relevant consideration. This complaint is made on the basis that the impugned finding was inconsistent with the fact that the Tribunal accepted that the applicant was accused of and charged with being an LTTE member or supporter, that this led to a trial and his detention in jail for 45 days and that the CID searched for the applicant after he left Sri Lanka in April 2012.
Finding in the absence of evidence or failure to take into account relevant considerations
The impugned finding must be considered in its context. The finding (which was made at [32] of the Tribunal’s Decision Record (CB 242)) was made on the basis that:
a)The applicant was not arrested and detained because of a suspected association to the LTTE, but rather because he attempted to leave Sri Lanka illegally;
b)The charges against the applicant had been falsified and were not brought on the basis of any genuine belief that the applicant was an LTTE member or supporter, but rather as a means of prolonging his detention;
c)The applicant had been released from detention and had not suffered from any serious mistreatment since his release;
d)The applicant’s family had not suffered any serious mistreatment since the applicant had left the country; and
e)The applicant would not be imputed as or considered to be a member of the LTTE if he returned to Sri Lanka in the future because of this previous charge (CB 242 at [33]).
As the Tribunal pointed out, apart from those matters, there was in fact nothing to suggest that the applicant had a profile or would be of interest to the authorities. That finding, and the findings referred to in [87] above, were open to the Tribunal on the evidence (including the country information referred to in the Policy Bulletin and at [35]-[43] of the Tribunal’s Decision Record (CB 243-245)).
Whilst the applicant may have preferred the Tribunal to have given more weight to some of the factors identified in [87] above and less weight to others, this is a question of merit and is not open to review on the application.
Irrational or illogical reasoning
Illogical or irrational reasoning sufficient to give rise to a jurisdictional error requires the decision to be one at which no rational or logical decision-maker could arrive on the same evidence: Minister for Immigration and Citizenship v SZMDS (supra) at [130] (Heydon, Crennan and Bell JJ). Further, it has been held that:
“Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence”: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J.
The impugned finding was not the product of illogical or irrational reasoning, because, as discussed above, there was evidence that supported it.
Ground 6: Failure to consider a claim
Ground 6 of the application alleges that the Tribunal failed to deal with the applicant’s claim that the applicant would be subjected to physical mistreatment amounting to persecution or significant harm during interrogation processes to which he would be subject upon his return to Sri Lanka.
Although the Tribunal did not make an express finding that the applicant would not be subjected to physical mistreatment during interrogation processes upon his return to Sri Lanka, the Tribunal implicitly made such a finding by making the following express findings:
a)The Tribunal considered and impliedly rejected reports that returned asylum seekers were subjected to torture in its references to the Policy Bulletin (CB 245 at [43]);
b)The Tribunal accepted that upon his return, the applicant would be held in conditions that “may well be uncomfortable”, impliedly finding that the conditions of detention would not be anything worse than uncomfortable (CB 246 at [44]);
c)The Tribunal acknowledged the applicant’s claim that he was physically mistreated the first time he attempted to leave Sri Lanka, but found that, having considered the various country reports, including the Policy Bulletin, there was no real chance that the applicant would suffer serious harm upon his future return to Sri Lanka (CB 246 at [46]); and
d)There was no suggestion in the available country information that indicated a failed asylum seeker caught more than once departing Sri Lanka illegally faced mistreatment above and beyond the usual procedures for dealing with such people upon their return (CB 247 at [49]).
In those circumstances, the applicant’s allegation that the Tribunal failed to deal with the question of whether he would be subjected to physical mistreatment upon his return is without merit. This is a quintessential case of where this particular issue was closely connected with, and subsumed in, other findings made by the Tribunal: Applicant WAEE v Minister (supra) at [47] (French, Sackville and Hely JJ).
Proposed additional ground 7: Failure to apply the correct test
Ground 7 of the Application alleges that the Tribunal failed to properly apply s.91R of the Migration Act in the context of its finding that a short period of detention or a fine would not amount to “serious harm”: see WZAPN v Minister for Immigration and Border Protection [2014] FCA 947.
There are two answers to this ground.
First, the detention and/or fine that the applicant might suffer is the result of the enforcement of a law of general application. The evidence before the Tribunal was that the law is universally enforced, against voluntary and non-voluntary returnees alike (CB 243-244 at [38]), 246 at [45]). Because the law is not applied in a discriminatory way:
a)Any harm that the applicant might suffer as a result of its application is not “persecution for one or more [Convention] reasons”: s.91R(1) of the Migration Act; and
b)The applicant cannot satisfy the threshold requirement in s.91R(1)(c) of the Migration Act.
Accordingly, even if detention for a short period or a fine can relevantly be described as “persecution” (which is denied), that is not caught by s.91R(1) of the Migration Act in this case. It follows that the question of whether or not the harm can relevantly be described as “serious” within the meaning of s.91R(2) of the Migration Act does not arise.
Secondly (if the Court finds that s.91R(2) of the Act does arise notwithstanding the above), it may readily be accepted that a factor relevant to assessing the discriminatory application of a general law is whether or not the law is appropriate and adapted to achieving a legitimate object (although the application of the law in this case was, on the evidence, not discriminatory). However, in this case, it is clear that there was such an object: the interest of Sri Lanka in securing its borders and ensuring that all arrivals and departures from its territory are authorised (CB 243-244, 246).
The fact that the Tribunal did not expressly identify this (obvious) legitimate object is irrelevant. A finding that such an object existed was subsumed in the Tribunal’s more general finding that the application of this general law to the applicant did not give rise to “serious harm” within the meaning of s.91R(2) of the Migration Act, which was made in the context of its reference to evidence about the application of the law by Sri Lanka: Applicant WAEE v Minister (supra) (CB 246 at [44]-[45]).
It follows that the Tribunal’s reasoning is supportable on two independent bases. The applicant’s submission that these bases for the decision were not truly independent is logically flawed. That is because either the law applied was:
a)One of general application applied universally – in which case no s.91R(2) question arises (as explained in [98] and [99] above); or
b)One of general application applied discriminatorily – in which case s.91R(2) arises but is satisfied if the application of the law was appropriate and adapted to achieving a legitimate object (as explained in [100]-[101] above); or
c)Not one of general application – in which case, as was decided in WZAPN (supra), any deprivation of liberty is capable of satisfying the definition of “serious harm” for the purposes of s.91(R)(2)(a) of the Migration Act.
For the reasons set forth above, this case falls into either category (a) or (b) above.
Consideration
Ground 1
At [54]-[55] of the Decision Record, the Tribunal stated:
54. … The Tribunal accepts the assessments of DFAT and the UK Home Office that Tamil failed asylum seekers are not commonly mistreated upon return.
55. The Tribunal has also considered whether there are substantial grounds for believing the applicant faces a real risk of suffering significant harm if returned to Sri Lanka for reason of his ethnicity, and/or an imputed political opinion. For the reasons given above, the Tribunal does not accept the applicant has an imputed political opinion. On the basis of country information referred to above the Tribunal does not accept an ordinary Tamil would face a real risk of significant harm. Even considered cumulatively with his return as someone who departed Sri Lanka illegally and had one previous failed attempt, the Tribunal does not accept a Tamil with no connection to the LTTE has a real risk of suffering significant harm.
There are two aspects in respect of this ground. The first arm alleges the Tribunal made the finding reproduced above in the absence of evidence. The applicant has also cited a number of authorities to support this argument, however, as submitted by the Minister, those matters were determined on their specific facts and do not provide assistance in the current matter.
The finding made by the Tribunal that is disputed was that the applicant, as an ordinary Tamil, would not face a real risk of significant harm in Sri Lanka because of his ethnicity or his political opinion. I accept the Minister’s submission that this was the basis for the finding is supported by the Country Policy Bulletin (Annexure “A” to the Varess Affidavit). The Bulletin relatively reported:
a)At paragraphs 4.6-4.7 that any detention and torture of Sri Lankan citizens is random and effects Sinhalese groups as much as Tamils; and
b)At paragraph 6.6 that there is no evidence from the UNHCR that there is any risk for Tamils on their return to Sri Lanka per se.
On a fair reading, the findings made by the Tribunal at [5] of the Decision Record were open to it for the reasons it gave and having regard to the contents of the Country Policy Bulletin. The impugned findings cannot be said to have been made in the absence of evidence.
The second aspect of this ground asserts the Tribunal made its impugned finding without taking into account a relevant consideration, in this case the Country Policy Bulletin.
I accept the authorities referred to by the Minister accurately set out how such a claim should be addressed.
In respect of the extant claim, I am of the view that this complaint fails at a factual level. The Tribunal did consider (see Decision Record at [43]-[44] (CB 245-246)) and accept the findings in the Country Policy Bulletin. Noting the contents of the Bulletin, I am satisfied the Tribunal’s findings were open to it for the reasons it gave. As submitted by the Minister, the Tribunal expressly referred to “country information referred to above” at [55] of the Decision Record. I am satisfied this statement also referred to the Bulletin.
This ground cannot be sustained and should be dismissed.
Ground 2
This ground asserts that the Tribunal has failed to take into account a number of relevant considerations or claims in finding the applicant did not face a real risk of suffering significant harm under the complementary protection provisions of the Migration Act.
The Tribunal made the following statement at [55] of the Decision Record:
55. … For the reasons given above, the Tribunal does not accept the applicant has an imputed political opinion. On the basis of country information referred to above the Tribunal does not accept an ordinary Tamil would face a real risk of significant harm.
The Tribunal did not explicitly refer to the matters in the particulars of this ground when considering the applicant’s complementary protection claims.
In SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, Robertson J stated at [56]-[57]:
56. There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.
57. As to SZFSK v Minister for Immigration [2013] FCCA 7, each case must depend on its own facts and on what the decision-maker’s reasoning in fact was. As I have said, in the present case, the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact which led to the conclusion that the Tribunal did not accept the appellant’s claim.
In respect of particulars (a)-(d) of this ground, I have had considered both the applicant’s and Minister’s submissions. In my view, the Minister’s submissions (reproduced above at [72]-[79]) accurately address this issue and no further comment is required in this respect
Accordingly, this ground cannot be sustained and should be dismissed.
Ground 3
This ground asserts the Tribunal fell into jurisdictional error by failing to take into account a relevant consideration or by engaging in arbitrary decision making in its consideration of country information before it. Specifically, the applicant claims:
a)The Tribunal failed to take into account the applicant’s submissions that a September 2012 Report from “Freedom from Torture” and an August 2012 Report from Human Rights Watch (the “Reports”) were credible as the UK High Court had issued injunctions based on the Respondents in September 2012 and October 2012; and
b)The Tribunal preferred the views of the UK Home Office and the Upper Tribunal of the Immigration and Asylum Chambers in the Policy Bulletin over that of the UK High Court on an arbitrary basis.
The Tribunal’s failure to refer to the UK High Court decisions was not a failure to take into account a relevant consideration. Rather, the only relevant considerations the Tribunal must take into account are the applicant’s claims and integers thereof: see MZYHS (supra) at [24] per Kenny J where her Honour stated:
24. Referring to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 ; [2001] FCA 1802 at [42] (Htun), the minister accepted that, having regard to the statutory framework governing applications for protection visas, an applicant’s claim to be a refugee and the integers of that claim are considerations that a decision-maker is bound to take into account. See also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 ; [2003] FCAFC 184 at [46] (WAEE); and NABE v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 ; 219 ALR 27 ; [2004] FCAFC 263 at [63] (NABE). The minister drew a distinction between a failure to consider an integer of a claim to be a refugee (or a contention that, if accepted, might establish a well-founded fear of persecution) and a failure to take into account evidence that, if accepted, might have led to a different finding of fact. As the minister submitted, and I accept, a failure to refer to, or adequately to consider, evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it may have led to an erroneous finding of fact. The authorities for this proposition are numerous: see, for example, Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 ; [2010] FCAFC 51 at [21]–[28] (SZNPG) per North and Lander JJ, with whom Katzmann J agreed (see at [35]); Htun at [42] per Allsop J, with whom Spender J agreed; WAEE at [46]; and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 ; 64 ALD 289 ; [2001] FCA 1196 at [79] per Allsop J, with whom Heerey J agreed. Related propositions are that the weight to be given evidence is a matter for the decision-maker and that a wrong finding of fact does not of itself give rise to jurisdictional error. Furthermore, making findings on credibility is the function of the decision-maker; and they are not ordinarily open to challenge in a court on a judicial review application: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 ; 58 ALD 609 ; [2000] HCA 1 at [64]–[67] per McHugh J; Abebe at [137] per Gummow and Hayne JJ; and Enfield City v Development Assessment Commission (2000) 199 CLR 135 ; 169 ALR 400 ; 60 ALD 342 ; [2000] HCA 5 at [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
In the extant matter, there is no reference to the decisions of the UK High Court in the Tribunal’s Decision Record. As stated in WAEE (supra) at [46] “It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.” Further, as submitted by the applicant, a mere failure to refer to or adequately consider evidence is not a jurisdictional error.
Ultimately, having regard to the parties’ submissions, I am of the view the Tribunal was not bound to draw a conclusion favourable to the applicant as result of its consideration of the evidence before it, including the Reports. Questions of weight and whether or not to accept or reject or reject particular evidence are issues of merit, in the sole province of the Tribunal (see Lee (supra) at [27]). I accept the Minister’s contention that the Policy Bulletin post-dated the Reports and provided the Tribunal with a sound basis on which it could accept its contents. Further, the Tribunal’s motivation for preferring the Policy Bulletin is plain from the extracts therefrom at [43] of the Decision Record. The decision to accept or prefer that material was not arbitrary.
For the above reasons, ground 3 of the application cannot be sustained and should be dismissed.
Ground 4
Ground 4 of the application asserts the Tribunal either misconstrued or failed to consider the applicant’s claim he:
a)Had been falsely charged by the CID on suspicion of being a supporter, sympathiser or member of the LTTE;
b)Was tried at the Local Court in Colombo with offences including suspicion of being a supporter, sympathiser or member of the LTTE; and
c)Was imprisoned at the Welikada Prison for 45 days after the trial.
At [21] of the Decision Record, the Tribunal stated:
21. The applicant claims he first tried to leave Sri Lanka in January 2012 because Tamils continue to experience discrimination even though the war in Sri Lanka has ended. The boat he was due to take was intercepted by the authorities and he was detained for 45 days, during which time he claims to have been physically mistreated. Under the law he could only be held for 24 hours without charge, so he was charged as an LTTE member so that he could be held longer. He was released on bail with the condition that he report to the Criminal Investigations Department (CID) every Sunday and that his parents would have to pay $500,000 rupee bond if he did not appear. He wanted to work in Colombo but was prevented from doing so by the CID. He and his family decided he should try again to come to Australia. He fears if he returns he will be detained, tortured and possibly killed by the CID, the Sri Lankan Army or the Sri Lankan authorities because he is Tamil and has been charged with being an LTTE member and because he is a failed asylum seeker.
This is where the Tribunal first identified the relevant claim by the applicant.
At [33] of the Decision Record (CB 242) the Tribunal addressed the same claim and made the finding that the applicant was charged with being an LTTE member only to extend his detention, noting he had originally been arrested for trying to leave Sri Lanka illegally.
The Tribunal at [46]-[47] of the Decision Record then addressed the claim again and made a number of findings. The proposition that these claims were not taken into account cannot be sustained. The Tribunal noted the claims and referred to them in its decision.
I accept the Minister’s submissions (reproduced at [84]-[86] above) the claim the Tribunal failed to take into account the fact the applicant was charged with being an LTTE member or supporter is without foundation. Despite the Tribunal making an express determination in respect of the applicant’s claims he was arrested and detained for 45 days, the Tribunal’s broader findings about this aspect of the applicant’s claims were sufficient to subsume such matters of detail.
In respect of the applicant’s submissions reproduced at [32] above, as submitted by the Minister, they ignore a critical and central point, namely the question of why the applicant was charged as being an LTTE member/supporter in the first place. The Tribunal found this was done in order to extend the applicant’s detention, and not because they were true or because the authorities believed the applicant was a genuine LTTE member/supporter. I am satisfied that any such claim was subsumed in the Tribunal’s findings at [33] and [50] that it was not satisfied the applicant would suffer serious harm for being imputed with an LTTE association on his return to Sri Lanka.
For the above reasons, this ground cannot be sustained.
Ground 5
This ground asserts that the Tribunal’s finding that the applicant was an ordinary Tamil with no profile or anything to indicate that he would be of interest to the authorities was a finding made in the absence of evidence, was irrational or illogical and/or was the product of a failure to take into account a relevant consideration.
The impugned finding is found at [32] of the Decision Record where the Tribunal stated:
32. The Tribunal finds none of these categories apply to the applicant. The Tribunal considers the applicant is an ordinary Tamil with no profile or anything to indicate he would be of interest to the authorities, apart from his having tried to leave Sri Lanka on an earlier occasion which the Tribunal has considered separately.
Having regard to the particulars of this ground, the Tribunal made its finding on the basis that:
a)The applicant was not arrested and detained because of a suspected association with the LTTE, rather, because he had attempted to leave Sri Lanka illegally;
b)The charges against the applicant had been falsified and were not brought on the basis of any genuine belief that the applicant was an LTTE supporter or member, rather, as a means of extending the length of his detention;
c)The applicant had been released from detention and not suffered any serious mistreatment since his release;
d)The applicant’s family had not suffered any serious mistreatment since the applicant had left Sri Lanka; and
e)The applicant would not be imputed as or considered to be a member of the LTTE if he returned to Sri Lanka in the future because of the previous charge against him (CB 242 at [33]).
Having regard to the above findings made by the Tribunal, the Tribunal’s statement and finding made at [32] of the Decision Record was open to it on the material before it (noting the Tribunal’s findings in respect of country information) and for the reasons it gave (see Decision Record at [35]-[43]).
Accordingly, the claim the Tribunal’s finding was made in the absence of evidence or was the product of a failure to take into account a relevant consideration cannot be sustained.
I now turn to the claim the findings was illogical or irrational. Such illogical or irrational reasoning requires the decision to be a decision which no rational or logical decision-maker could arrive at on the same evidence: SZMDS (supra) at [130].
For the above reasons, I am not satisfied the Tribunal’s impugned finding or decision is of an illogical or irrational nature. This aspect of the ground cannot be sustained.
Accordingly, ground 5 of the application cannot be sustained.
Ground 6
Ground 6 of the application asserts the Tribunal failed to deal with the claim advanced by the applicant that, during the questioning and detention process on his return to Sri Lanka, he would be subjected to physical mistreatment amounting to persecution or serious harm, noting the Tribunal had accepted he had been physically mistreated on his first attempt to leave Sri Lanka.
It is accepted that the Tribunal did not make an express finding that the applicant would not be subjected to physical mistreatment during the interrogation and detention processes on his return to Sri Lanka. However, the Tribunal:
a)Accepted that, on the applicant’s return to Sri Lanka, he would be held in conditions that “may well be uncomfortable”, which was an implicit finding that the conditions of his detention would be no more than uncomfortable (CB 264 at [44]);
b)Acknowledged the applicant’s claim he was physically mistreated when he was detained the first time he had attempted to leave Sri Lanka (CB 246 at [46]);
c)Found that, having considered various country reports, there was no real chance the applicant would suffer serious harm upon his future return to Sri Lanka (CB 247 at [50]-[51]); and
d)Found no information in the available country information that indicated a failed asylum seeker caught departing more than once from Sri Lanka illegally faced more mistreatment above and beyond the usual procedures for dealing with such people on return. It found multiple returnees do not have an objective or subjective fear of facing harsher treatment amounting to serious harm for leaving illegally more than once (CB 247 at [49]).
Having regard to the above findings, I am satisfied that the claim alleged not to have been considered by the Tribunal was, in fact, closely connected with the other claims made before the Tribunal and was ultimately subsumed in the Tribunal’s findings (see WAEE (supra) at [47]). I am satisfied this claim was, in fact, addressed.
Accordingly, this ground cannot be sustained and should be dismissed.
Ground 7 – The “WZAPN” Issue
On 3 September 2014, the Federal Court of Australia delivered judgment in the matter WZAPN (supra) 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 pleaded grounds in further amended application can be sustained. On a fair reading of the evidence before the Court, no error on the part of the Tribunal is apparent.
I am satisfied the application should be dismissed with the applicant ordered to pay the Minister’s costs.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
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