SZSYE v Minister for Immigration

[2015] FCCA 433

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSYE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 433

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal ‑ whether the Tribunal misconstrued s.91R(3) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 91R, 476

Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration & Ethnic Affairs v Wu Shan  Liang [1996] HCA 6; (1996) 185 CLR 259
Applicant A v Minister for Immigration  & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; 2000 [HCA] 19
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252
NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244

Applicant: SZSYE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1355 of 2013

Judgment of: Judge Nicholls

Hearing date: 23 October 2014

Date of Last Submission: 23 October 2014

Delivered at: Sydney

Delivered on: 27 February 2015

REPRESENTATION

Applicant: In Person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 17 June 2013 and amended on 27 March 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1355 of 2013

SZSYE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 June 2013 and amended on 27 March 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 May 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. A bundle of relevant documents filed by the Minister is in evidence before the Court (“Court Book” – “CB”). The relevant background to this application is summarised in the Minister’s written submissions. Having regard to the Court Book, in my view, it is a reasonable summary of the applicant’s claims to protection, and the Tribunal’s findings. I adopt the following paragraphs from the Minister’s written submissions for the purposes of this judgment ([2] – [4]):

   “[2] The Applicant is a citizen of Sri Lanka who arrived in Australia on 17 May 2012 as an irregular maritime arrival: CB 105.4. On 22 August 2012 the Applicant was informed that the Minister had exercised his power under s 46A(2) of the Migration Act 1958 (the Act) to allow the Applicant to apply for a protection visa: CB 19. The Applicant applied for the visa the same day: CB 20-98. The delegate interviewed the Applicant on 28 August 2012: CB 107.5. The delegate refused the visa on 4 October 2012: CB 100-114. The Applicant applied to the Tribunal for review on 15 October 2012: CB 115-121. The Tribunal held hearings on 28 November 2012: CB 157-159, and 6 May 2013: CB 180-181.

   [3] The Applicant claimed to fear persecution in Sri Lanka for reason of his Tamil ethnicity and imputed pro-LTTE political opinion.  He claimed he worked as a truck driver for a wealthy Tamil man in Mallaitivu (‘Kumar’), who was abducted by armed men in December 2011.  He claimed that in January 2012 he (the Applicant) was also abducted by armed men in a van, but managed to escape.  The Applicant claimed that the Sri Lankan Army (SLA) suspected him of transporting arms for the LTTE, and that Kumar had been working for the LTTE.  He claimed he moved to Colombo and then left for Australia in May 2012.  He claimed that since arriving in Australia unidentified men had come to his house and were looking for him.  See generally CB 187-196.

   [4] The Tribunal, like the delegate, found that the Applicant was not credible and had given untruthful evidence: CB 197 [35]. While the Tribunal accepted that the Applicant was a Tamil and had driven trucks for Kumar as he claimed, and that he had heard Kumar had been kidnapped, it did not accept that the Applicant was also told Kumar was working for the LTTE or was kidnapped by the SLA: CB 197-201 [36-46]. Nor did the Tribunal accept the Applicant’s claim to have himself been abducted, noting many changes and inconsistencies in the Applicant’s evidence, and found these claims fabricated: CB 210-203 [47-51]. The Tribunal found that the Applicant was not of any interest to the government when he left Sri Lanka in May 2012, and rejected his claim that since his arrival in Australia unknown men had been to his house: CB 203 [51]. Based on these findings and independent country information the Tribunal rejected the Applicant’s claim that he had or would be imputed with a pro-LTTE political opinion by the government: CB 205 [56-61], or faced a real chance of harm because of his Tamil ethnicity: CB 206 [62-63], or as a failed asylum seeker or returnee: CB 207-209 [64-68]. The Tribunal found that the Applicant might be charged for illegal departure, but found that this would be the enforcement of a non-discriminatory law of general application, and so would not amount to persecution under s 91R of the Act (see s 91R(1)(a)): CB 209-210 [69-73]. Accordingly the Tribunal rejected the Applicant’s claims to have a well founded fear of persecution for a Convention reason. Based on these findings the Tribunal also found that the Applicant was not owed protection under the ‘complementary protection’ provisions in s 36(2)(aa) of the Act: CB 210-211 [76-85]. Accordingly the Tribunal affirmed the decision under review.”

Application before the Court

1. The application as amended contains four grounds. They are as follows:

   “Ground 1

   The Tribunal stated (CB 201, RRT decision at p16 at [46]) ‘…The only clear evidence before the Tribunal is that Kumar was  Tamil businessman in Mullaitivu who was abducted in in December 2011 by unknown men in white van…’. The Tribunal committed jurisdictional error by conflating the issues about the end of war with LTTE and/ or is or affected by illogicality.

   Particulars

   The Tribunal considered that the LTTE was defeated 18 months prior to December 2011 (CB 205. RRT decision at p20 at [57]) and thus the event has not occurred. The Tribunal’s finding is illogical in that the two events are independent events.

   Ground 2

   The Tribunal committed jurisdictional error when it failed to properly assess that the Applicant would be in foreseeable future and /or made finding in the absence of the evidence.

   Particulars

   The Tribunal did not properly assess the issue whether there was risk that there would be loss of liberty having found that there would be deprivation of liberty (CB 209, RRT decision at p24 at [71]) but failed to address whether there was foreseeability of future deprivation of liberty. The Tribunal further committed jurisdictional error when it found that the Applicant is likely to be detained for 4 days (at [81]) (relying on material at (CB225 277; RRT decision at

   
   

   p40 – 42 at [122] – [126]) when the material considered one situation and is not evidence that Applicant is likely to be detained for 4 days only.

   Ground 3

   The Tribunal erred in the interpretation of s 91R and the serious harm that the Applicant is likely to suffer.

   Particulars

   The Tribunal found that there would be deprivation of liberty (CB 209; RRT decision at p24 at [71]) but considered that considered that such deprivation did not constitute serious harm. The Applicant contends that the Tribunal has committed jurisdictional error and has misconstrued s 91R in conjunction with the definition of s 5(1) of ‘cruel or inhuman treatment or punishment’ and erred in the interpretation of s 91R of the Act. The Applicant contends that the harm is serious nature to fall within s 91R as interpreted under the Act.

   Ground 4

   The Tribunal committed jurisdictional error in its consideration of complementary protection under ss 36(2)(aa); 36(2A) when it failed to consider the Applicant’s claim that would he would suffer serious harm upon being returned to Sri Lanka from certain Sinhalese persons.

   Particulars

   The Applicant has claimed specific threat from the Sinhalese persons [crew] (CB 13-16) throughout the journey [as per entry interview] and on Christmas Island and identified certain persons.

   The Tribunal found that on the basis that after some time the Applicant did not know the whereabouts of the crew there would be no harm (CB 203 at [52]; CB 209 at [71]). The Tribunal fell into error when it failed to consider whether the Applicant is likely to suffer harm upon return to Sri Lanka. The Tribunal misdirected its enquires.

   The finding was not based on evidence.”

   [Errors in the original.]

2. At the time of making his application, and the lodging of the amended application, the applicant was represented by a firm of solicitors who had briefed counsel to appear for the applicant. The amended application appears to have been settled by counsel.

3. However at some time before the final hearing of this matter the solicitors filed a relevant “Notice of Withdrawal” withdrawing as the applicant’s solicitors. At the final hearing, the applicant appeared in person. He was assisted by an interpreter in the Tamil language.

4. The applicant was unable to assist the Court with any of the grounds of the application. He stated that his legal representatives had prepared the relevant documents and he had no knowledge of their contents. He was content to proceed with the final hearing.

Consideration

Ground 1

1. Ground one of the amended application directs attention to [46] of the Tribunal’s decision record (CB 201):

   “With regard to the identity of the abductors and the reasons for the abduction, the only evidence before the Tribunal is the hearsay evidence of what the applicant was told by the young man who worked in Kumar’s office.  However, as noted above, the Tribunal does not accept that the young man said anything to the applicant about Kumar being involved with the LTTE or anything about the LTTE.  The applicant himself may suspect this was the reason but apart from what he claims the young man told him, the applicant did not provide any other evidence that might suggest or indicate that Kumar had been involved with the LTTE.  According to the delegate’s decision, the applicant told the delegate in the interview that he believed that the SLA was responsible because they are the only ones who would want to take a Tamil (see folio 94 of the Department file).  He also claimed in his statement of 13 November that he thinks the SLA suspect he transported arms for the LTTE.  However, having found that the applicant was an unreliable witness who was prepared to fabricate and embellish his evidence to enhance his claims, the Tribunal has no confidence in accepting his evidence about his suspicions about the SLA and the LTTE.  The only clear evidence before the Tribunal is that Kumar was a Tamil businessman in Mullaitivu who was abducted in late December 2011 by unknown men in a white van.  Considering the abduction occurred more than two and half years after the LTTE was last active in Sri Lanka, on the evidence before it, the Tribunal is not prepared to accept that Kumar was abducted by the SLA as the applicant claimed, or that Kumar had any past involvement with the LTTE or that the GoSL perceived that Kumar had an association with the LTTE on the basis he was a rich Tamil businessman or that the reason for his abduction was his past involvement with the LTTE.”

   [The applicant had claimed that Kumar was his “boss” and had been abducted by armed men in a white van in late December 2011.]

2. The complaint appears to be that it was illogical for the Tribunal to find that Kumar was not abducted, because the LTTE had ceased being active some 18 months prior to December 2011. This requires some further explanation. The applicant had claimed that his “boss” (Kumar) had been abducted, by the Sri Lankan Army (“SLA”), because he had been assisting the LTTE.

3. There is no transcript of what occurred at the Tribunal hearing before the Court. I note that during the time the applicant had been legally represented, orders had been made granting leave for the filing of any such transcript.

4. In any event, the only record of what occurred before the Tribunal is the various references given by the Tribunal in its decision record. That account shows that at the hearing the applicant was asked “…extensive questions” on the issue of the claimed abduction of his boss ([44] at CB 199 to CB 200). The Tribunal accepted, albeit with some concerns, some of the applicant’s claims in this regard.

5. However, the Tribunal noted that there were a number of inconsistencies in the applicant’s evidence. It put these inconsistencies to him. The Tribunal found that the applicant had “…embellished his evidence…” in relation to the circumstances leading to, and surrounding, the claimed abduction ([45] at CB 200).

6. That part of [46] (at CB 201) on which the applicant now relies, was only one part of the Tribunal’s analysis of the matter of the claimed abduction. The Tribunal otherwise made clear in [48] (at CB 202), that its conclusion that Kumar was not abducted, was not based simply on the timing of the claimed abduction. The Tribunal’s reasons also included a lack of “…confidence in accepting [the applicant’s] evidence about his suspicions about the SLA and the LTTE…” (at [46] at CB 201).  That is a reference to the applicant’s suspicions as expressed to the Tribunal that Kumar was involved with the LTTE and his suspicion that Kumar was abducted by the SLA.

7. In these circumstances, I agree with the Minister that reasonable minds could differ in relation to the Tribunal’s relevant reasoning. As such, the reasoning and the conclusion which it formed, cannot be said to be illogical (see Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [78] and [130] – [131], SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [15] and [85]). Ground one is not made out.

Ground 2

1. It must be said that it is not clear what legal error is being asserted by ground two. Just what is meant by the alleged failure to “properly assess that the Applicant would be in foreseeable future…” remained unexplained by the applicant before the Court.

2. In seeking to understand the complaint, regard must be had to [71] (at CB 209) and [81] (at CB 211 to CB 212):

   “[71] As discussed with the applicant, the available sources indicate that after being charged on return it is possible he might spend up to four days in custody on remand before being brought before a magistrate, and that the conditions in remand cells were below international standards and were overcrowded, dark, unclean and cramped (see paragraphs 125), however, the information before the Tribunal did not indicate that people detained in these circumstances had been subjected to any physical harm or threats of harm during the period of remand (see paragraphs 122 to 126).  When asked to comment on this information the applicant re-stated his claims that the SLA would harm him because of his work with Kumar and they would torture him while he was locked up.  As noted above, the Tribunal does not accept that he would suffer harm for these reasons and it does not accept that his work for Kumar would be a reason why there is a real chance he would suffer serious harm on remand.  With regards to his loss of liberty while on remand, because it arises through the operation of a law of general application, the Tribunal finds that it does not amount to persecution for the purposes of s.91R.  With regards to the period of time in which he is on remand, although the conditions of the remand cell he might be kept in would cause him to suffer discomfort and irritation, on the evidence and information before it, the Tribunal does not accept that, in his particular circumstances and with his attributes, there is a real chance he would suffer serious harm for any reason.

   …

   [81] With regard to him being prosecuted for breach of the Immigrants and Emigrants Act of 2006 the Tribunal has considered whether through the application and operation of that law and process, there are substantial grounds for believing there is a real risk he will suffer significant harm. In light of its findings that there is not a real chance he would suffer serious harm during the interview process in relation to his return or during the period of remand, which on the evidence before it the Tribunal considers will be up to four days, the Tribunal considers there are no substantial grounds for believing there is a real risk he will suffer significant harm on that basis. In making this finding the Tribunal has considered whether spending four days and nights in a remand cell with conditions that fall below international standards could constitute ‘torture’ or ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’, as defined in the Act and discussed in Appendix 1. However, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds to consider there is a real risk that being in overcrowded, dark, unclean and cramped conditions for four days and nights would, in the applicant’s particular circumstances and with his attributes, cause him pain and suffering that could be characterised as ‘cruel or inhuman treatment or punishment’ which is inconsistent with Article 7 of the International Covenant on Civil and Political Rights (‘ICCPR’); or cause him extreme humiliation that constitutes ‘degrading treatment or punishment’ which is inconsistent with Article 7 of the ICCPR; or cause him ‘severe pain or suffering’ that could be characterised as ‘torture’. The Tribunal does not accept that being in a remand cell in those conditions for that period would cause the applicant, in his particular circumstances and with his attributes, to suffer harm, whether physical or mental pain or suffering, which could constitute significant harm within the meaning of s.5(1) of the Act.”

3. I note that the particulars also make reference to [122] (at CB 225) to [126] (at CB 227) of the Tribunal’s decision record. These paragraphs are concerned with various country information in relation to the penalties for illegal departure from Sri Lanka. The Tribunal expressly referred to this information in [71] (at CB 209), and implicitly in [81] at (CB 211 to CB 212).

4. Both [71] (at CB 209) and [81] at (CB 211 to CB 212), with separate reference to the two criteria for the grant of the protection visa set out at s.36(2) of the Act, are concerned with the question of whether the applicant would be prosecuted for departing Sri Lanka “illegally”, and whether this would amount to serious or significant harm.

5. In my view, it would appear that the complaint in relation to [71] (at CB 209) is as follows. The Tribunal found that while the applicant could be deprived of his liberty while held on remand upon his arrival in Sri Lanka, it did not consider the likelihood of deprivation of liberty after that time.

6. It is important to note the nature of the exact claim that the Tribunal has addressed in [71] at CB 209. The applicant, through his migration agent, had made a number of submissions in support of his claims. The Tribunal conducted a hearing with the applicant on 28 November 2012. The hearing resumed on 6 May 2013 for the express purpose of giving ([27] at CB 193 to CB 194):

   “…the applicant the opportunity to give evidence and present arguments in relation to material regarding the likelihood of him being prosecuted on return for having left Sri Lanka through irregular channels and methods, and to seek his comment on various pieces of independent information and to put to him certain inconsistences in his evidence for his comment and response”

1. In relation to the “first” of these “purposes”, the Tribunal reports it put to the applicant for comment various country information relevant to his having left Sri Lanka through “irregular channels” ([30] at CB 195).

2. This was the issue addressed at [71] (at CB 209). What stands as central to the Tribunal’s relevant analysis is its finding (as expressed at [71] at CB 209), that while the applicant’s circumstance gave rise to a real risk of deprivation of liberty on return, because of the “possibility” of being charged as a result of his “irregular” departure, such charges would arise from a law of general application (the Sri Lankan “Immigrants and Emigrants Act of 2006”). As such this would not amount to “persecution”, as that term is to be understood in light of s.91R of the Act.

3. At best, the complaint in ground two, in relation to [71] (at CB 209), is that the Tribunal relevantly focussed on the situation immediately on arrival and did not look to the question of the “foreseeability of future deprivation of liberty”, beyond that time.

4. The Tribunal’s relevant finding (as set out at [21] above), in relation to prosecution under the Sri Lankan law for irregular departure from Sri Lanka, is comprehensive of the particular issue the Tribunal was considering at [71] (at CB 209 and [72] at CB 209 to CB 210). The Tribunal reasoned that, based on country information available to it, the applicant faced the likelihood of detention because of charges brought under the Act. However, this would not amount to “serious harm”, given any enforcement of the Sri Lankan law was a general, and

   
   

   non-discriminatory, application of law.

5. There was nothing in the material before the Tribunal to indicate that the applicant would be subject to a continuing threat of prosecution beyond this, for reason of his “irregular” departure.

6. Three further points need to be made. First, the ground makes reference to the country information referred to at [122] (at CB 225) to [123] (at CB 226). To the extent that the ground seeks to take issue with the Tribunal’s use, or view, of the country information, the use of, and weight to be accorded to, such information is for the Tribunal to determine (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).

7. Second, the Tribunal’s consideration of the matter of “prosecution” was only one part of the Tribunal’s assessment of the likelihood of serious harm if the applicant were to return to Sri Lanka. The applicant’s claims were also considered as arising from his Tamil ethnicity, past claimed events, his boss’s claimed abduction, the applicant’s claim to have been abducted, events occurring during his travel to Australia, his time whilst in detention in Australia, the suspicion of his connection with the LTTE and also as a failed asylum seeker returning to Sri Lanka. In all of this, there is nothing to suggest, nor does ground two complain, that the Tribunal did not properly apply the “reasonably foreseeable future” test (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 279).

8. Third, although not raised as an issue by the applicant in these proceedings, I note that enforcement of a law of general application does not ordinarily constitute persecution for the purposes of the Refugees Convention (Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 (“Applicant A”) per McHugh at 258, and see also Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 at [20]). This was explained in Applicant A at 233 per Brennan CJ:

   “Secondly, the feared persecution must be discriminatory. The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination (race, religion, nationality, membership of a particular social group or political opinion) mentioned in Art 1(A)(2). The persecution must be ‘for reasons of’ one of those categories. This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms. The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of ‘refugee’”."

9. The complaint in relation to [81] (at CB 211 to CB 212), appears to take issue with the Tribunal’s finding that the applicant would likely be detained for four days. The grievance appears to be that the material on which the Tribunal relied ([122] – [126] at CB 225 to CB 227) did not provide a basis for the finding that the applicant could “be detained for 4 days only” (the particulars to ground two).

10. First, as set out above, the weight and view to be taken of country information are for the Tribunal to determine within the proper exercise of its jurisdiction. That information, in the current case, related to the likely treatment on arrival of those who left illegally. This was said to be that such persons would be detained for up to 24 hours pending investigation, or longer, if they arrived during a weekend or public holiday. They are then brought before a Magistrate to determine bail if charges (under the relevant law) are to be laid (see for example [124] at CB 226). The Tribunal found that the applicant would be held for up to four days before coming before a Magistrate. This was a finding reasonably open to it on what was before it.

11. Further, in terms of the complaint of the failure to consider the applicant’s claims in the context of the reasonably foreseeable future, the Tribunal found that as a “first time offender with no criminal record, he would be ordered to pay [a fine] and would not be given a custodial sentence” ([83] at CB 212). The prospect of long-term detention (deprivation of liberty) was therefore found to be remote ([83] at CB 212). This finding was reasonably open to the Tribunal on what was before it. In all, ground two is not made out.

Ground Three

1. Ground three asserts that the Tribunal fell into error in its interpretation of s.91R(3) of the Act and the likelihood of the applicant suffering serious harm. The particulars state that at [71] (at CB 209) the Tribunal found that the applicant could be deprived of his liberty, but that this would not constitute “serious harm”

2. The specific assertion of legal error is that the Tribunal misconstrued s.91R(3) of the Act, in light of the definition in s.5(1) of the Act, of “cruel or inhuman treatment or punishment”. The complaint appears to be that the Tribunal fell into error because the deprivation of liberty was such as to fall within the concept of “serious harm”.

3. The immediate difficulty is that [71] (at CB 209) of the Tribunal’s decision was concerned with “serious harm”. The applicant’s ground, and particular, asserts error in relation to s.91R of the Act, which is concerned with the concept of “persecution”, for the purposes of an application of the Act to Article 1A(2) of the Refugees Convention. This immediately invokes the criterion for the grant of a protection visa set out at s.36(2)(a) of the Act.

4. The definition of “cruel or inhuman treatment of punishment” (as set out at s.5(1) of the Act) is plainly relevant to s.36(2)(aa) of the Act (see s.36(2A)(d) of the Act). That is, to the concept of “significant”, not “serious” harm. This is to be distinguished from s.91R(3) of the Act, “a threat to the person’s life or liberty” (see s.91R(2)(a) of the Act).

5. On this basis, the ground as pleaded is not made out. However, before the Court the Minister referred to WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”). In WZAPN, North J held that (at [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.”

6. His Honour subsequently held that the relevant decision maker in the case before him had erred in applying s.91R(2)(a) of the Act (WZAPN at [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.”

7. It is trite to say that this Court is bound by this. In the current case, the last sentence at [71] (at CB 209) (see [15] above) reveals that the Tribunal fell into the error identified in WZAPN. That is, in its assessment in relation to the question of the deprivation of liberty. That concept invokes s.91R(2)(a) of the Act and is an example of “serious harm” for the purposes of s.91R(1)(b) of the Act. The Tribunal did make a qualitative assessment of the conditions while on remand and found that this would not lead to “serious harm”.

8. However, the Minister submitted, the three matters set out at s.91R(1) of the Act (which obviously includes s.91R(1)(b)) operate cumulatively. That is, the applicant’s circumstances need to fall within all three of these elements, such as to then say that Article 1A(2) of the Refugees Convention applies (SZSRU v Minister for Immigration
   and Border Protection [2014] FCA 1252 (“SZSRU”) at [69] per Katzmann J).

9. In the current case, the Minister argues that, while on the authority of WZAPN the applicant is taken to have met s.91R(1)(b) of the Act, the Tribunal’s finding that the applicant’s circumstances fell within s.91R(1)(c) of the Act, means that Article 1A(2) of the Refugees Convention does not apply.

10. As set out above, the Tribunal’s analysis at [71] (at CB 209) was concerned with the matter of the likely prosecution of the applicant because of his illegal departure from Sri Lanka, and whether any such prosecution, and the circumstances surrounding it, gave rise to “persecution” within the meaning given to that term by the limitation or qualification of the obligation, arising from Article 1A(2) of the Refugees Convention, as expressed in all of s.91R(1) of the Act.

11. The Minister’s argument is that the Tribunal found that the “Immigrants and Emigrants Act” was a law of general application that was not being selectively enforced by the Sri Lankan authorities. Therefore, any prosecution under the “Immigrants and Emigrants Act”, and related conduct, would not amount to persecution (see [70] at CB 209). In that light, the applicant’s circumstances do not come within s.91R(1)(a) or (c) of the Act.

12. It is, in my view, important to note that when considering the matter of prosecution under the “Immigrants and Emigrant’s Act”, and whether any prosecution would amount to persecution, the Tribunal’s analysis and findings, although they did not refer specifically to s.91R(1)(b), or for that matter (a) or (c) of the Act, referred to “persecution for the purposes of s.91R” of the Act.

13. The term “serious harm”, as it appears in s.91R(1), appears only at s.91R(1)(b) of the Act. The section, as a whole, is concerned with explaining, or more precisely, qualifying, or limiting, the concept of “persecution”, as it appears in Article 1A(2) of the Refugees Convention, and the application of that Article to, in effect, the consideration of protection visa applications.

14. Sub-paragraphs of s.91R(1)(a) and (c) of the Act make no reference to “serious harm”. That circumstance is also seen with the specific reference to the examples of “serious harm” as set out at s.91R(2) of the Act, as applicable only to s.91R(1)(b) of the Act.

15. In this light, and on a fair reading, the Tribunal’s analysis at [70] (at CB 209) and the finding that the Immigrants and Emigrants Act was a law of general application, was not expressed as being with reference to s.91R(1)(b) of the Act, but rather with reference to the expression of the concept of “persecution”, as it is otherwise explained at s.91R(1) of the Act (that is, s.91R(1)(a) or (c) of the Act) (see at [70] at CB 209).

16. Within this context, the Tribunal’s finding as to the loss of liberty, while on remand, was again expressed in terms of “persecution for the purposes of s.91R” of the Act as a whole ([71] at CB 209 – the last sentence). This can be contrasted with the impugned last sentence of [71] (at CB 209) where the Tribunal made specific reference to “serious harm” and therefore invoked s.91R(1)(b) of the Act, and, consequently, fell into the error identified in WZAPN.

17. In all, therefore, the error found in light of WZAPN in the last sentence at [71](at CB 209) relates only to s.91R (1)(b) of the Act. WZAPN was, relevantly, concerned with s.91R(1)(b) of the Act, and therefore does not bear on the Tribunal’s analysis and findings, as they relate to the other parts of s.91R(1) of the Act. As was said in SZSRU at [69] per Katzmann J:

    “The effect of s 91R is that the refugee criterion is not made out unless the decision-maker is satisfied of all the conditions set out in paras (a)–(c) of subs (1)…”

18. Ground three, even in light of WZAPN, does not assist the applicant in revealing jurisdictional error in the Tribunal’s decision.

Ground Four

1. Ground four asserts that the Tribunal fell into jurisdictional error when it failed to consider the claim that the applicant would suffer “serious harm” on return to Sri Lanka “from certain Sinhalese persons”.

2. The particulars referred to the applicant’s claim that he had been threatened by a group of Sinhalese members of the crew of the boat on his journey to Australia. The particulars take issue with the Tribunal’s findings at [52] (at CB 203) and [71] (at CB 29).

   “The applicant claimed that he and the passengers on the boat he travelled on to Australia had been threatened as a group by the Sinhalese crew members, who said they had been with the SLA, and that if they gave evidence to the Australia government about the identity of the Sinhalese crew they would be in trouble on return.  He stated that he did not previously know the Sinhalese crew members nor did they know him or come to know any of his personal details and information.  He also stated that he was one of 66 passengers on the boat, that he had not given evidence to the Australian authorities about the Sinhalese crew and that he does not know what had happened to the crew members.  In light of these circumstances, on the evidence before it, the Tribunal considers the chance of the applicant suffering any harm in relation to these matters to be remote and far-fetched, and does not accept there is a real chance he would suffer serious harm from the Sinhalese crew members or their agents in the reasonably foreseeable future.”

   [For [71] at CB 209 see at [15] above.]

3. The application makes no reference to [84] (at CB 212), but it appears to be relevant:

   “With regard to his fear of being harmed by the Sinhalese crew of the boat he travelled to Australia on, or their agents, in light of its findings that there is not a real chance he would suffer serious harm in relation to that situation, the Tribunal considers there are no substantial grounds for believing there is a real risk he will suffer significant harm on that basis.”

4. The applicant did raise this claim in an interview conducted on his arrival in Australia (see CB 13 to CB 14). He also raised this at the hearing before the Tribunal (see [24] at CB 193).

5. The ground complains that the Tribunal did not consider this claim. Such a complaint, if made out, would reveal jurisdictional error (NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2004] FCAFC 263; 144 FCR 1, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244). However, as is clear at [52] (at CB 203), and subsequently at [84] (at CB 212), the Tribunal did consider this claim. It found that the applicant did not have a well-founded fear of harm arising from these circumstances ([52] at CB 203), and there were no substantial grounds for believing that there is a real risk of significant harm arising from this claim ([84] at CB 212). These findings were reasonably open to the Tribunal on what was before it.

6. The references to [71] (at CB 209) in the particulars, is unexplained before the Court. As set out above, that paragraph was not directed to the matter of the threat from the Sinhalese crew. In all, ground four is not made out.

Conclusion

1. The grounds of the application, and the issues they gave rise to, do not reveal jurisdictional error in the Tribunal’s decision. It is appropriate to dismiss the application. I will make an order accordingly.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  27 February 2015