SZSYG v Minister for Immigration
[2015] FCCA 1622
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSYG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1622 |
| 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 – whether the Tribunal denied the applicant natural justice – consideration of WZAPN issue – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A(2), 51A, 91R, 357A, 422B, 424, 427 |
| BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 MZYGC v Minister for Immigration and Citizenship [2010] FCA 966 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 WAEH of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 364 |
| Applicant: | SZSYG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1366 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 3 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | L Karp |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the First Respondent: | B O'Donnell |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS
The Application filed on 24 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 1366 of 2013
| SZSYG |
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 18 June 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 1300991, a decision of Tribunal Member S. Kamand dated 20 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 16 July 2013, pursuant to orders of the Court made on 5 July 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 applicant was granted leave on 11 September 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)The Affidavit of Nathan Hammond affirmed on 12 March 2014 and filed on the same day (the “Hammond Affidavit”); and
b)Written submissions on 12 March 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 is a Sri Lankan national of Tamil ethnicity. He arrived on Christmas Island by boat on 29 May 2012 (CB 224 at [1]). As such he was an “irregular maritime arrival” and so was unable to apply for a Protection visa without a Ministerial dispensation pursuant to s.46A(2) of the Migration Act.
In an entry interview conducted soon after his arrival he claimed that his father was abducted and killed before he was born. He also claimed that he had been abducted by a paramilitary group, questioned for an hour and released. He thought that those who abducted him suspected that he was supporting the Liberation Tigers of Tamil Eelam (“LTTE”) (CB 10).
The Minister exercised his discretion to permit the applicant to lodge an application for a Protection visa on 22 September 2012 (CB 16). The application appears to have been lodged his application on that day (CB 17-73).
In a statement attached to that application he claimed:
a)That his father disappeared before he was born. He did not know who took his father or why;
b)After his father’s disappearance his mother moved from Trincomalee to Chavakatchcheri, near Jaffna in the north of Sri Lanka. There she lived with her mother. The applicant was born in Chavakatchcheri on 24 October 1990;
c)In 1990 his grandfather, who was a member of the Tamil National Alliance (“TNA”), a moderate Tamil group, was arrested by the Sri Lankan Army and held in “Poosa” (sic – Boosa) prison for three years on suspicion of links with the LTTE. He was tortured in prison;
d)After his grandfather was released his mother and grandmother returned to Trincomalee because the Jaffna area was getting too dangerous;
e)In 2007 a bomb exploded in a navy camp about 100 metres from the applicant’s home. When the applicant went to his gate to lock it a naval officer grabbed him, beat him on the head and held a gun to his head whilst swearing at him in Sinhalese. He was only released when his mother and grandmother grabbed the officer’s legs and pleaded with him;
f)Following that incident the applicant obtained employment at a hotel near his house. On 21 February 2008 he was on his way to work when he heard his name being called. He walked towards the voices and was grabbed from behind, a hand was held against his mouth. His hands were tied and he was blindfolded and gagged. Something round and cool was put to his head. He believes that it was a gun. He was taken into the forest, abused in broken Tamil and accused of hiding weapons. He was released when villagers started calling out and searching for him;
g)In about June 2008 he along with his uncle and about thirty others were detained in a round up. They were released after representations were made by the TNA leader;
h)In 2010 the applicant started supporting the TNA and helped in their election campaigns in 2010 and 2011; and
i)He decided to leave Sri Lanka because even though the war was over things were not improving for Tamils and he did not want to live in constant fear and die young like his father. He feared being detained by the Criminal Investigation Department (“CID”) upon return to Sri Lanka because of suspicion of support for the LTTE, because he was a returned asylum seeker and because of his support for the TNA and the rights of Tamils.
Amongst the documents submitted in support of the application was a letter dated 24 July 2012 and signed by one K. Selvarajah, Chairman of the Urban Council of Trincomalee. Phone and fax numbers were given (CB 81). The letter identified the applicant, stated that he was an active supporter of Tamil political parties and had worked for the TNA in the 2010 and 2011 elections. The letter continued:
He has to flee Sri Lanka seeking asylum in a foreign country to save his life as he was threatened by unknown armed groups for engaging in politics in support of Tamils.
The application was rejected on 2 January 2013 (CB 113-130). The delegate gave “little weight” to Mr Selvarajah’s letter because by the applicant’s own admission nothing had happened to him since 2008 and in his statement he said that he left because things were not improving for the Tamil people (CB 124.2).
Proceedings before the Tribunal
The application to the Tribunal was lodged on 22 January 2013 (CB 133-138). A hearing was scheduled for 2 May 2013 (CB 148) and a transcript of that hearing is annexed to the affidavit of Nathan Hammond made on 12 March 2014. The transcript indicates that there was discussion about Mr Selvarajah’s letter (Transcript (“T”) 33-34) but nothing was said as to whether Mr Selvarajah should be contacted to verify its contents.
In a pre-hearing submission the applicant’s advisors made a claim on his behalf that one Puviraj, a TNA member had been kidnapped by the CID and tortured in January 2012. This is footnoted to a folio in Departmental file CLF 2012/199660 (CB 164 at [47]). The submission also referred to reports that TNA representatives and supporters being threatened and attacked (CB 172-173). Further such reports were cited in a post hearing submission (CB 214-217).
The Tribunal’s decision
The Tribunal accepted the truth of the applicant’s claims as to being threatened and assaulted by a naval officer in 2007, being abducted and questioned about LTTE links in February 2008 and being held in a roundup in 2008 (CB 225-226 at [12]). It found however that he had no further direct experiences of harm between 2008 and when he left the country in 2012 during which time he worked, studied and travelled to the North-Central Province on public transport (CB 226-227 at [13]-[14]). It found that these facts threw significant doubt on his claims to have been of adverse interest to anyone and to have remained safe by living discreetly (CB 227 at [14]).
It did accept, however, that the applicant had experienced a range of frightening events before June 2008, that he had grown up in the context of a bloody civil war and that he genuinely held fears for his safety (CB 227 at [15]).
Having so found, the Tribunal accepted that the applicant was a supporter of the TNA but that he had exaggerated the nature and extent of his involvement. It was not satisfied that he campaigned door to door or street to street, gathered people in public places in support of the TNA or that he intended to be anything more than an ordinary Tamil civilian supporter of the TNA in the future. It was not satisfied that this level of support, even accumulated with other factors, would expose him to a real chance of harm in the future (CB 229 at [23]).
In reaching this conclusion the Tribunal referred to the fact that it had put to the applicant that he had not raised an issue of fearing persecution for his support for the TNA at his arrival interview (CB 227 at [17] referring to T 32). It noted, at [17] (CB 227), that the applicant responded by referring to Mr Selvarajah’s letter (referring to T 32-33). The Tribunal commented in its decision that the circumstances in which the letter was provided raised doubts as to its veracity. It continued by stating at [17] (CB 227):
Further, the Tribunal is unable to contact the writer of the letter to test the veracity of its contents, as the Tribunal cannot be certain that the writer of that letter would be able to speak openly to the Tribunal or that the Tribunal’s inquiries would not open new risks of harm to the writer of the letter or the applicant.
After observing that the applicant had indicated that his uncle had many connections to the TNA, it made a finding that the letter was not determinative of any of the applicant’s claims and nor did it overcome the Tribunal’s concerns as to the true nature and extent of his political involvement.
Having found that the applicant did not have a well-founded fear of persecution as a result of his opinions and activities in support of the TNA, the Tribunal discussed and dismissed his other claims on the basis of actual and imputed political opinion (CB 230-232), membership of a particular social group (CB 232-235), his illegal departure from Sri Lanka (CB 235-236), and his claims to complimentary protection (CB 236-237).
Current Proceedings
The application to this Court seeks the following orders:
1. A writ of certiorari removing the decision into this Court to be quashed.
2. A writ of mandamus requiring the second respondent to rehear and redetermine the applicant’s application to it according to law.
3. Costs.
4. Any further or other relief as the Court considers appropriate.
The sole ground of review pleaded in the application states:
1. The Tribunal denied the applicant natural justice in a manner not foreclosed by s.422B of the Migration Act.
Particulars
(a) Failure to disclose to the applicant the reasons why it considered that it could not make an enquiry of the author of a letter dated 24 July 2012 written by Mr K Selvaraja, who purported to be Chairman of the Urban Council of Trincomalee as to whether the applicant worked for the Tamil National alliance in the manner stated in that letter.
(b) Failure to make the enquiry stated in Particular (a) above.
Applicant’s Submissions
The applicant had claimed in his Protection visa application that he feared persecution for supporting the TNA. The letter at CB 81 was potentially independent confirmation of the objective basis of that fear from a person who was in a position to know. It was therefore a very important document.
The applicant contends there is no question that the Tribunal considered the letter. There is also no doubt also that it considered contacting the author of the letter but decided against doing so because of concerns for the safety of the writer and the applicant, and uncertainty as to whether the writer would be able to speak freely. As stated above (at [11] above) the Tribunal did not raise with the applicant its concerns about contacting Mr Selvarajah.
Two questions arise from this:
a)First, should it have done so pursuant to the common law requirement to act in a manner that was procedurally fair?
b)Second, if so, did s.422B(1) of the Migration Act affect the requirements of procedural fairness in this case?
The first question – the requirements of procedural fairness
Natural justice or procedural fairness requires that there be a fair decision making process, not a fair result. It entails a flexible obligation to act fairly in a manner appropriate and adapted to the facts of the individual case (e.g. Kioa v West (1986) 159 CLR 550 at 584-585; 612-615). Often this obligation is satisfied by disclosure of the issues in a case, by the disclosure of adverse material or information for comment, and by the tribunal of fact acting in a way that precludes a reasonable apprehension of bias.
There are however other requirements, such as addressing a clearly articulated submission or claim (e.g. Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24], [95]), and the requirement to consider evidence which has the potential to be decisive (e.g. MZYGC v Minister for Immigration and Citizenship [2010] FCA 966 at [11] per Jessup J). Thus the requirements of natural justice are not to be reduced to inflexible categories.
The circumstances of this case are that the Tribunal member who considered all the evidence and conducted a thorough hearing thought about contacting Mr Selvarajah about what was written in his letter. She did not do so because of concerns about influences on any response that she may obtain, and a concern of placing Mr Selvarajah and the applicant in danger. Those concerns were no doubt based on her perception of the situation in Sri Lanka. But as the letter was of great potential importance – in fact so important that she thought about making contact with the author – it could only have been procedurally fair to put her concerns to the applicant. It may be that he or his advisor could have given information about the author and his office which allayed her fears, or persuaded her of a way to make the enquiry in a manner which allayed her concerns. The Tribunal’s failure to disclose to the applicant the reasons why it considered that it could not make an enquiry of Mr Selvarajah potentially deprived it of a line of inquiry that could have affected the outcome of the case.
The applicant contends the Tribunal’s failure to put its concerns about contacting Mr Selvarajah for his comment breached the requirements of procedural fairness.
The second question – the effect of s. 422B
Section 422B of the Migration Act states:
422B Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 the plurality of the High Court held that the matters “it [i.e. the Division in question] deals with” in s. 51A (an analogue to s.357A and s.422B) required a search of the sections within the Division for a provision ‘dealing with’ a relevant “matter” (at [39]). Inquiries by the Refugee Review Tribunal are dealt with by ss.424(1) and s. 427(1)(d). Those provisions permit the Tribunal a discretion to make inquiries. However, the way the discretion is to be exercised is not the subject of any provision within Division 4 of Part 7 of the Migration Act. Thus natural justice applies.
In addition, in Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 the Hayne, Kiefel and Bell JJ discussed the meaning and application of s.357A(3), which has an analogue in s.422B(3). Without coming to a concluded view on the issue of what s.357A(3) requires (at [62]) their Honours suggested, at [57]-[58] that a breach of the requirement to act in a way that is fair and just is to be ascertained by reading it as it applies to the Tribunal in the conduct of its review.
Whether or not s.357A(3) incorporates the requirements of procedural fairness it is clear that no provision of Division 4 of Part 7 of the Migration Act governed the procedures by which the Tribunal was to decide whether to make an inquiry.
Section 422B(1) did not excuse the Tribunal from acting in a way that was procedurally fair. In those circumstances the Tribunal’s failure to advise the applicant for his comment the reasons why it did not contact Mr Selvarajah was a breach of the requirements of procedural fairness and thus a jurisdictional error.
Ground 1(b) of the application is not pressed by the applicant.
Minister’s Submissions
The sole ground of review in the application relates to the following passage in its decision record at [17] (CB 227) (bold added):
[The Applicant] responded by reference to a letter in support from a person from Trincomalee Urban Council …, insisting that this evidences his support and involvement with the TNA. However the letter is dated 24 July 2012, and according to the applicant, was emailed to him in Australia after he heard that he needs documentary evidence in support of his Protection visa application. That the letter was provided with his Protection visa application in mind raises concerns that its contents were drafted to enhance the applicant’s claims. Further, the Tribunal is unable to contact the writer of the letter to test the veracity of its contents, as the Tribunal cannot be certain that the writer of that letter would be able to speak openly to the Tribunal or that the Tribunal’s inquiries would not open new risks of harm to the writer of the letter or the applicant. Further, the applicant has indicated that his uncle has many connections in the TNA which suggests that such a letter may not be difficult to source. For the above reasons cumulatively, the Tribunal does not consider the letter… to be determinative of any aspect of the applicant’s claims or to overcome the Tribunal’s concerns regarding the true nature and extent of his political involvement in Sri Lanka.
The Minister submits it is clear that in the bolded portion the Tribunal was considering whether to use its powers in s.424 to “get any information that it considers relevant”. In general, the Tribunal is not obliged to exercise these inquisitorial powers: WAEH of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 364 at [19]-[24] (Wilcox, RD Nicholson and Downes JJ); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ). This was not a case where the “limited” duty to inquire applied: see Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429.
Despite what the applicant submits ([21]-[32] above), there was no obligation on the Tribunal to give the applicant a hearing on whether it would use its inquisitorial powers. The applicant has cited no authority for such an obligation regarding the decision to use the Tribunal’s inquisitorial powers. In any case, there appears to have been no request by the applicant that the Tribunal do so. The idea of contacting the author of the letter appears to have been the Tribunal’s own, which it briefly considered and then rejected. It was under no obligation to consult the applicant in this decision.
Consideration
Having regard to the above submissions, I am not satisfied the claim advanced by the applicant can be sustained. The relevant passage that is the subject of the applicant’s claim has been reproduced above at [34]. The Tribunal was considering whether it should use its inquisitorial powers to contact the writer of a letter in Sri Lanka that had been written in support of the application’s protection claims. It ultimately declined to do so, on the basis that it would not be able to know if the writer would be able to speak openly to the Tribunal and on the basis that the Tribunal’s inquiries might open new risks of harm to the applicant and/or the writer.
In WAEH of 2002 v Minister for Immigration and Multicultural Affairs (supra), the Full Court stated at [19]-[22]:
Failure to consider exercise of powers pursuant to s424 of the Act
19. S424 provides powers to the Tribunal by which it may seek additional information. Before the primary judge a similar ground was argued also with reference to s427 which gives to a tribunal powers to summon or require evidence. The second ground of appeal for which leave was given is expressed only with reference to s424.
20. Prior authorities in relation to the powers under s424 were considered by the primary judge. He stated that had it have been necessary he would have followed the line of authority commencing with Kulwant Singh to the effect that the section is permissive and does not require the power to be exercised. That line of authority, as he pointed out, was contrary to the decision of Madgwick J at first instance in Al Shamry where his Honour held that it could be inferred from the silence of a tribunal in relation to the issue of why investigative avenues had not been pursued that it gave no consideration to the question whether any such clarificatory exercise of its information-gathering powers was necessary and that, in the circumstances, there was a breach of the Tribunal's obligations under the Act. The primary judge considered it was unnecessary for him in the present matter to form a definite view on this issue. He considered the Tribunal's clear finding that even if the appellant was a leader in the League, he did not have a well-founded fear of persecution, was conclusive so that the Tribunal had not been obliged to consider whether to exercise the investigative powers conferred on it by either s424 or s427.
21. Counsel for the appellant argued that the authorities referred to by his Honour were ones in which the decisions had been made as to whether the failure to consider gave rise to a procedural breach pursuant to s476(1)(a) of the Act. The issue was further addressed in that light in Yusuf v Minister for Immigration & Multicultural Affairs [1999] 58 ALD 470 and in Marjeed. Here, however, the argument is based on failure to consider a relevant consideration namely, whether the Tribunal should exercise such powers.
22. Our views accord with submissions on behalf of the respondent on this ground which must be accepted for the following reasons. The first is that the statute does not impose an implied obligation to consider the exercise of the power. That much is common ground and it is significant. The second is that the issue relied upon in the ground is not a relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 27 at 39 per Mason J. A relevant consideration arises where an implication arises to that effect from the subject matter, scope and purpose of the Act. It is just that obligation which it is common ground does not exist under s424. The third is that s476(3)(e) provides that a failure to take a relevant consideration into account in the exercise of a power is not included in the reference to an improper exercise of power in s476(1)(d).
As stated in WAEH (supra), the statute does not impose an implied obligation on the Tribunal to consider the exercise of its power under s.424. This is, importantly, accepted by the applicant. The Tribunal considered whether it would use its power, but declined to (and gave reasons.
Further, as correctly submitted by the Minister (though not strictly pleaded by the applicant), this was not a case where the “limited” duty to inquire applied: see Minister for Immigration and Citizenship v SZIAI (supra). This was not pleaded by the applicant and, on a fair reading of the relevant part of the Decision Record, it cannot be said that such an obligation arose.
The last aspect of the applicant’s claim alleges the Tribunal breached its procedural fairness obligations to the applicant by not inviting him to comment on (or invite him to a further hearing) the Tribunal’s decision not to contact the writer of the letter.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the High Court stated at [48]:
48. Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
I accept the Minister’s submissions that the contention that there is no obligation to consult an applicant about whether or not the Tribunal is going its powers under s.424(1) in circumstances where the applicant did not ask the Tribunal to contact the letter’s writer. If the Tribunal were obliged to consult the applicant, this would undermine the s.430 obligation to give reasons. Further, the authority of Li (supra) concerned a situation where an applicant expressly asked for an adjournment that was refused with very brief reasons.
Accordingly, the sole ground of review pleaded by the applicant cannot be sustained and should be dismissed.
The “WZAPN” Issue
This matter came before the Court for hearing on 3 December 2014. Judgment was reserved. Consequently, as other proceedings addressing this specific issue had requested the reserved judgment not be finalised until the High Court decision was known, I have adopted that approach for this current matter.
On 3 September 2014, the Federal Court of Australia delivered judgment in the matter WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 per North J.
On 1 October 2014, the Minister filed in the High Court of Australia an Application for Special Leave to Appeal from the judgment of North J in WZAPN (supra).
Failed Protection visa applicants of Tamil ethnicity returning to Sri Lanka voluntarily or by escort on temporary travel documents from a Western country will be questioned by the authorities and may be arrested and held on remand for a few days whilst waiting for a court appearance facing charges including possible breaches of the Immigration and Emigration Act 1949. Various country reports together with a Sydney Morning Herald article of 8-9 December 2012 indicate that people are detained possibly for 3 days after which they are bailed for a future court appearance. The hearing may levy a fine based on a law of general application relating to illegal departure from Sri Lanka. Country information indicates that there is some evidence demonstrating that the law is discriminatorily applied to people of Tamil ethnicity. As the entry point is usually Colombo, remand would be served in Negombo Prison which is cramped and unsanitary. The question arises as to whether being questioned, detained for up to 3 days and significant fines are of the type and seriousness of harm amounting to persecution as meant by s.91R of the Migration Act.
In WZAPN (supra), North J held that the application of s.91R did not permit a quantitative assessment of the nature of the harm required to be considered by that section. His Honour described the approach taken by the Reviewer at [18], where he states:
18. The reviewer accepted that there was a real chance that the applicant would be questioned periodically and probably detained for short periods when he failed to provide identification, but held that the frequency and length of the detention, and the nature of the treatment he would receive in detention, did not amount to serious harm within s 91R(2)(a), (b) or (c). The reviewer concluded that on this analysis, the nature of the detention was not sufficiently significant and thus did not constitute serious harm … In approaching the matter in this way, the reviewer made a qualitative assessment of the nature of the harm caused by the detention.
The argument was recorded by his Honour as:
20. The applicant contended in his original written submissions, and in oral submissions, that the reviewer wrongly applied a qualitative assessment to the nature of the harm. The applicant argued that s 91R(2)(a) is concerned with the threat, in the sense of a risk, of harm to life and liberty, whatever the nature of the harm. Whether there is a threat depends on an assessment of the likelihood of harm happening. But once that threat is established, s 91R(2)(a) operates so that the threat to life or liberty amounts to serious harm irrespective of the nature or extent of the potential harm to life or liberty. Thus, there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. Consequently, once the reviewer found that the applicant was at risk of detention, serious harm was established within the meaning of s 91R(2)(a) irrespective of the significance of the circumstances attending the detention.
That argument was accepted by his Honour at [30], [44] and [45] where his Honour stated:
30. The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.
…
44. In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.
45. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.
North J’s decision in WZAPN v Minister for Immigration and Border Protection (supra) has been considered in the following Full Federal Court decisions;
a)SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 per Robertson, Griffiths and Mortimer JJ;
b)BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 per Robertson, Griffith and Mortimer JJ; and
c)SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 per Robertson, Griffith and Mortimer JJ.
After a detailed consideration of the approach of the construction of s.91R and to the test in s.91R(1) and (2) their Honours found in SZTEQ at [58]-[60]:
58. Another aspect of the structure of s 91R(1), which we have touched on above, concerns the fact that it contains three separate and cumulative conditions for persecution to be established for the purposes of the Migration Act and the regulations, of which the requirement of serious harm is only one. We acknowledge that matters such as the length of detention, its frequency, purpose and character may also arise in determining whether the reason for the detention, which must be a Convention reason, is the essential and significant reason for the persecution (as required by s 91R(1)(a)) or involves systematic and discriminatory conduct (as required by s 91R(1)(c)). However, this does not mean that such matters may not also arise for consideration and evaluation in relation to the requirement of serious harm within s 91R(1)(b).
59. Unlike North J in WZAPN, we do not consider the absence of adjectival qualification in s 91R(2)(a) to be of significance, given the context of the provision as a whole. Rather, the absence of an adjective indicates that a threat to “liberty“ is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning. In this context, “liberty“ is a nuanced concept which takes its meaning from the context in which it appears, namely the requirement that the persecution involve serious harm, as is made clear in s 91R(1).
60. With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397:
… the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.
In the conclusion of SZTEQ at [154]-[155], their Honours state:
154. For the above reasons, and with great respect to North J, we do not consider that WZAPN correctly decided the construction of s 91R(2)(a). In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s 91R(1)(b) and Art 1A(2).
155. As the above analysis has sought to show, even if there was no error in his Honour’s examination of ss 91R(1) and (2) and the Convention concept of persecution by reference to “international human rights standards“ (see his Honour’s reasons at [43]), an issue which need not be determined in this appeal, contrary to his Honour’s reasoning, neither those standards, nor the jurisprudence and commentary about those standards in refugee decision-making supports the proposition that any deprivation of liberty must constitute serious harm for the purpose of the Convention.
On 17 June 2015 the High Court unanimously allowed an appeal from the Federal Court: see Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22. It also unanimously dismissed an appeal from the Federal Court which was WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82. The High Court held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself and without more, a threat to liberty within the meaning of s.91R(2)(a) of the Migration Act.
Conclusion
I have read the contents of the Court Book and, particularly, the Decision Record. On a fair reading thereof, no jurisdictional error on the part of the Tribunal is apparent. Accordingly, as the pleaded ground in the application or submissions made by the applicant cannot be sustained, the application should be dismissed with costs awarded to the Minister.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
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