SZTAP v Minister for Immigration

[2015] FCCA 1610

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAP v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1610

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, 91R

BZAFM v Minister for Immigration and Border Protection  [2015] FCAFC 41
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1
Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82

Applicant: SZTAP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1562 of 2013

Judgment of: Judge Lloyd-Jones

Hearing date: 3 December 2014

Delivered at: Sydney

Delivered on: 19 June 2015

REPRESENTATION

The Applicant: The applicant appeared in person with a Tamil interpreter.

Counsel for the First Respondent: Mr J Kay Hoyle

Solicitors for the First Respondent: Clayton Utz

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The Application filed on 10 July 2013 and amended 24 January 2014 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1562 of 2013

SZTAP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed in this Court on 10 July 2013 and amended on 24 January 2014 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 1302334, a decision of Tribunal Member P. McIntosh dated 17 June 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.

2. The solicitors for the Minister filed on 20 August 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”.  

3. The applicant was granted leave to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely.  The applicant filed an affidavit and an amended application on 24 January 2014.  On 10 November 2014 the applicant filed written submissions.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. 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.

2. The applicant is a national of Sri Lanka, who was born on 24 August 1994. He arrived on Christmas Island as an Irregular Maritime Arrival (“IMA”) on 20 June 2012. On 20 August 2012, he applied for the protection visa (CB 17-78). On 11 February 2013, the Delegate refused the application (CB 195-235). She did so on the basis that Australia did not owe protection obligations to the applicant pursuant s.36(2)(a) of the Migration Act or obligations of complementary protection pursuant to s.36(2)(aa) of the Migration Act.

3. The applicant appeared at the Tribunal hearing with his registered migration agent.  The applicant’s representative provided a written submission to the Tribunal and certain country information (CB 263-274, 278-304 and 329).  On 17 June 2013, the Tribunal affirmed the decision of the Delegate.  The applicant commenced the current proceedings on 10 July 2013.

Applicant’s claims 

1. The applicant is a Sri Lankan of Tamil ethnicity. He claimed that his father - who worked as a fisherman and lived in an area of Sri Lanka (Mullaitivu) that had been controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) - had been suspected of being a member of the LTTE. In 2006, the Criminal Investigation Department (“CID”) had come to the family home in Udappu looking for his father (the father did not live with the applicant’s family).  The CID had threatened his mother that if they could not find her husband (the applicant’s father) they would return and abduct her son (the applicant).  In response to this, the applicant’s mother agreed to pay the CID money 2-3 times a year not to abduct the applicant.  The applicant’s mother continued to pay the CID for a period of 6 years until the Applicant left Sri Lanka for Australia.

2. The applicant claimed that the extortion of money from his mother constituted harassment and a threat of harm to him for a period of 6 years.  Further, he claimed to have left Sri Lanka because he was suspected of supporting the LTTE by reason of his Tamil ethnicity and his father's suspected involvement with the LTTE.  He claimed to fear that the CID would take him in the absence of his father now that he was no longer a child.

3. The applicant claimed to fear persecution for the following reasons:

   a)his Tamil ethnicity;

   b)his imputed political opinion because of his father’s suspected links to the LTTE and, by extension, his suspected links to the LTTE; and

   c)his membership of a particular social group being someone who was a family member of a suspected LTTE member and who, if he returned, would be someone who would be a failed asylum seeker. 

The Tribunal’s decision  

1. The Tribunal accepted most of the applicant's account.  However, the Tribunal did not accept that the applicant had a well-founded fear of being persecuted by reason of his ethnicity, imputed political opinion or membership of a particular social group.

2. The Tribunal found that there was not a real chance the applicant would be persecuted simply because he was a Tamil; the applicant had not faced any discrimination or harm for this reason previously.  The Tribunal did not accept the mere fact of being a Tamil gave rise to a well-founded fear of being persecuted in Sri Lanka (CB 333 at [16]-[21]). 

3. The Tribunal accepted, based on country information, that “bribe solicitation” occurred in Sri Lanka.  However, it did not consider that the CID officers intended to harm or detain the applicant. Rather, their threats of abduction were found to be for the purpose of extorting money from the applicant's mother.  In the absence of any claim by the applicant that the mother would cease making the payments, the Tribunal considered there was no real chance that the applicant would be harmed if he returned to Sri Lanka.  As the applicant was almost 19 years of age and not a child, the Tribunal did not accept the applicant's suggestion that they had not previously taken him because he was “small”.

4. The Tribunal noted that this assessment was consistent with the actions of the family to date.  The father had felt sufficiently safe to return to the village periodically.  The applicant's younger brother, who would also be a potential target for abduction, remained with the mother in Sri Lanka.  The CID was found to have no real continuing suspicions about the father's involvement in the LTTE and no suspicions regarding the applicant.  The CID could easily have arrested one of them were this not the case.  The Tribunal accordingly found that there was not a real chance of the applicant being persecuted as a result of being imputed with a political opinion through suspected links with the LTTE (CB 334-338 at [22]-[56]).

5. Although the Tribunal accepted UNHCR information that some of those who returned to Sri Lanka suffered human rights abuses, it found that those cases involved people suspected of LTTE-links or who were criminal suspects (CB 338 at [55]).  The Tribunal accepted that the applicant would be subjected to scrutiny on re-entry to Sri Lanka and may receive a visit from CID to be questioned as an involuntary returnee.  However, the Tribunal found that there was not a real chance that the applicant would be harmed unless the authorities had reason to suspect him of an association with the LTTE.  The applicant had not been harmed before leaving Sri Lanka and the Tribunal found that merely seeking asylum in Australia would not give rise to such a suspicion (CB 339 at [59]).

6. The Tribunal found that any returnees who have left the country in breach of the Immigration and Emigration Act (“IEA”) are, regardless of ethnicity, subject to arrest. For this reason, the Tribunal accepted that as the applicant had left Sri Lanka without his passport, if he returned to Sri Lanka he may be arrested at the airport and brought before a court to apply for bail. The applicant may also be required to spend a few days in Negombo prison, in which conditions have been described as dirty and uncomfortable, and may face a fine. The Tribunal did not accept, however, that there was any real chance that the applicant would be persecuted or subjected to significant harm upon return to Sri Lanka (CB 339-340 at [61]-[62]).

Current Proceedings

1. The amended application pleads the following ground of review:

   1.  The Tribunal failed to appreciate the significance of an aspect of the Applicant’s claims in its assessment of whether s.36(2)(aa) applied to him

   Particulars

   The Tribunal accepted that the Applicant’s mother had been the victim of extortion and that that situation was likely to continue.  It noted that the Applicant had not been abducted as threatened, because his mother had continued to pay.  The Tribunal failed to consider whether the Applicant would be abducted at some future time if he returned to Sri Lanka and his mother ceased to be able to pay.

Applicant’s Submissions

1. The applicant’s written submissions state:

   I humbly seek this Court to order the Refugee Review Tribunal (RRT) to reconsider and determine my case according to the law because the RRT declined its jurisdiction.

   I filed the grounds and supporting arguments as to why the RRT has not followed the required law in making its decisions.

   I still rely on the grounds and the supporting arguments.

   I have no lawyer to represent me in this court.

   When I come for my hearing on 3 December 2014 I will explain in details through my Tamil interpreter as to why I do not agree with the RRT’s decision.

2. At the hearing, the applicant made brief oral submissions where he restated the ground of his amended application.  Further, the applicant stated he would have problems in Sri Lanka as he was a Tamil.

3. In response to the Minister’s oral submissions made at the hearing, the applicant stated he would in fact face problems if he returned to Sri Lanka because the authorities would suspect him of having links with the LTTE, as his father had been involved.

Minister’s Submissions

1. In his application for review, the applicant identifies a single ground of review.  The precise basis of this ground, and the nature of the error contended for, is not entirely clear:  it is articulated merely as a failure on the part of the Tribunal “to appreciate the significance of an aspect of the Applicant’s claims”.

2. Some indication may be garnered from the particulars relied upon.  These were as follows:

   “The Tribunal accepted that the Applicant’s mother had been the victim of extortion and that the situation was likely to continue.  It noted that the Applicant had not been abducted as threatened, because his mother continued to pay.  The Tribunal failed to consider whether the Applicant would be abducted at some future time if he returned to Sri Lanka and his mother ceased to be able to pay.”

   (emphasis added) 

3. The first sentence of these particulars is not in dispute:  at paragraph [46] of the Decision Record, the Tribunal stated that it was satisfied that if the applicant were to return then the CID may continue to visit his mother and extort money from her using the alleged suspicions about the applicant’s father’s connections to the LTTE as an excuse.

4. The second sentence is accurate but incomplete.  Its use of the word “because” suggests the sole reason why the applicant had not been abducted was the fact that his mother continued to pay the CID officers.  The Tribunal’s reasons indicate that this was one reason but not the sole reason.  Paragraph [47] of the Decision makes clear that the Tribunal formed the view that the evidence suggested that the CID officers had no interest in abducting the applicant, having never spoken with him, questioned him directly or done anything to him for a period of six years.  In paragraph [49] the Tribunal noted that the applicant’s family did not appear to fear any bad outcome, the applicant’s father having visited the family from time to time and the younger brother having continued to reside in the family home.

5. The essence of the applicant’s complaint is contained in the final sentence. It invites the Court to find that, for the purposes of s.36(2)(aa) of the Migration Act, the Tribunal failed to consider what would happen to the applicant if, on his return to Sri Lanka, the applicant’s mother no longer paid money to the CID officers. Although this invitation is clothed in the language of jurisdictional error, the Tribunal’s reasons disclose no such error.

6. The applicant’s claim was that he would be at risk because of the imputed political opinion of being sympathetic to, or associated with, the LTTE.  On the applicant’s evidence, his mother’s payments to the CID merely prevented his abduction based on his perceived sympathies with the LTTE.  The Tribunal dealt with the claim of his imputed political opinion:  it found that the CID were not interested in the Applicant or his father and did not accept that either the applicant or his father were perceived as being associated with or supporters of the LTTE.   In this regard, it is important to note that this conclusion is entirely consistent with the Tribunal’s finding that in the future the CID may continue to visit his mother and extort money from her “using alleged suspicions about this father’s connection with the LTTE as an excuse” (emphasis added).  In other words, the Tribunal did not accept that the CID had any actual perception of the applicant or his father as connected with the LTTE but instead the CID simply stated that they had such a suspicion as a “bluff” in order to intimidate the applicant’s mother into paying money to them.  The Tribunal discharged its statutory function in considering and answering the applicant’s claim.

7. That conclusion informed the Tribunal’s reasoning in relation to the issue of complementary protection (CB 340 at [64]-[68]).  The Tribunal considered what would happen to the applicant upon his return to Sri Lanka.  The Tribunal clearly accepted that the CID might continue to visit the applicant’s mother but only for the purpose of extorting money from her and not for the purpose of threatening or intimidating the applicant.  In other words, the Tribunal concluded that there was not a real chance of the applicant being abducted.

8. In this context, in paragraph [51] of the Decision Record (CB 337), the Tribunal noted that it was difficult to establish what the CID would do on the applicant’s return (i.e. whether the extortion would continue, given its sole purpose was to extract money rather than actually abduct the applicant).  The Tribunal stated that “in the absence of any claim that [the applicant’s mother] proposes to stop making payments, I consider the situation will remain unchanged”.  Properly read, that is a conclusion that where the applicant’s mother continued to make payments the situation was unlikely to change – put slightly differently, the CID would continue to extort money from her where she continued to pay.  That was an available conclusion on the evidence for it stated nothing more than the consequence of the maintenance of the status quo.   There was neither the need nor the requirement for the Tribunal to go further.  The Tribunal had already reached its conclusion that there was no real chance of the applicant being abducted.  In any event, the applicant made no claim and provided no evidence that his mother would no longer make such payments.

Consideration

1. The original application filed in this Court does not identify with any specificity an actual ground of review, other than to state that the Tribunal’s decision was affected by jurisdictional error.  Accordingly, there is no need to consider any ground pleaded in the original application. 

2. The applicant’s affidavit filed on 24 January 2014 states only that the applicant has filed an amended application after receiving legal advice and relies on that.  Accordingly, there is no need to consider any evidence therein.

3. The amended application pleads a sole ground of review (see [16] above).  This view has not been expanded upon in any detail by the applicant, either in written submissions, or at the hearing.

4. The applicant has, in effect, pleaded that the Tribunal has failed to consider a claim made by the applicant, being that if the applicant returned to Sri Lanka and his mother ceased to be able to pay her extorters, the applicant would be abducted.

5. The relevant findings of the Tribunal are contained at [46]-[51] of the Tribunal’s Decision Record (CB 337) where it stated:

   46.    On the basis of the applicant’s evidence I am satisfied that if he returns to Sri Lanka corrupt officers from the CID may continue to visit his mother and extort money from her as they have done for the past six years or so.  I am satisfied that they will continue to do using alleged suspicions about his father’s connection with the LTTE as an excuse.

   47.    However having carefully considered the applicant’s evidence I am not satisfied that, despite their threats, these men intend to detain or harm the applicant.  This is primarily because they have shown no interest in him.  They have never spoken to or questioned him directly, whether about his own political opinions, his father’s activities or his father’s whereabouts.  Instead for a period of six years they have threatened to abduct him if his mother did not tell them the whereabouts of his father.  In terms of getting that information that threat has been noticeably unsuccessful for over six years.  If abduction of the applicant were their true intention they could and would have acted on their threat by now.

   48.    Further, as noted below the applicant’s father (the witness) was of the opinion the CID had not yet taken the applicant, for example had not come to his school by the day of the Tribunal hearing even if not his home, because he was “small”.  That may once have been a reasonable explanation, but the applicant is now almost 19 years of age and is not a child.  I am not persuaded by this explanation.  It is far more likely that the corrupt officers’ threats towards the applicant are bluff designed to elicit money from his mother.

   …

   51.    As to his treatment by them if he returns to Udappu, it is difficult to establish how these officers might react.  However, having regard to their past conduct I am satisfied that their overriding aim is simply to extort money from his mother and, in the absence of any claim that she proposed to stop making payments, I consider that situation will continue unchanged despite the applicant no longer being a child.  There is not a real chance that the applicant will be abducted or otherwise seriously harmed by these men if he returns to Udappu.

1. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 their Honour Black CJ, French (as he then was) and Selway JJ stated at [58]:

   The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it — Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated — Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant — Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

2. What is clear from the Tribunal’s findings, reproduced at [32] above, is that the Tribunal did in fact have regard to the applicant’s claims as they were put by him. The Tribunal was satisfied the extorters had no intention of abducting or kidnapping the applicant and gave reasons in support of this finding. Further, it considered what might occur if the applicant were to return to Sri Lanka at [51] (CB 337) and found there would not be a real chance the applicant would be abducted by these men. On a fair reading, these findings were open to the Tribunal to make on the material before it and for the reasons it gave.

3. To the extent the applicant contends such a claim was made, the evidence before the Court does not support this contention.  I have read the contents of the Court Book, particularly the applicant’s claims and the Tribunal’s Decision Record.  At no point does the applicant raise the claim that his mother will cease to be able to pay the extorters referred to.  Further, as noted above, the Tribunal found that notwithstanding the applicant’s mother’s ability to pay, the extorters had no intention of abducting the applicant.

4. I otherwise accept the submissions put forward by the Minister accurately address the claims made by the applicant.  Accordingly, Ground 1 of the amended application cannot be sustained.

5. I now turn to the oral submissions made by the applicant at the hearing.  These submissions sought to advance the applicant’s substantive protection claims and express the applicant’s disagreement findings of fact made by the Tribunal.  This seeks to engage the Court in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272. Accordingly, these submissions cannot be sustained.

The “WZAPN” Issue

1. 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.

2. 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.

3. 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).

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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

1. 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 forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 19 June 2015