SZTBP v Minister for Immigration
[2015] FCCA 1617
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTBP v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1617 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal refusing to grant applicant a Protection (Class XA) visa – consideration of WZAPN issue – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 91R, 91X, 425(1), 441C |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 NABEv Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 SZBYJ v Minister for Immigration & Anor [2005] FMCA 1927 SZSXT v Minister for Immigration and Border Protection & Anor (2014) 307 ALR 31 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 | ||
| Applicant: | SZTBP | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1637 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 1 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with a Tamil interpreter |
| Solicitor for the First Respondent: | Ms S Given of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The Application filed on 18 July 2013 and amended 18 March 2014 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZTBP.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1637 of 2013
| SZTBP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in the Federal Circuit Court on 18 July 2013 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 14 June 2013. The Tribunal affirmed a decision by a delegate of the Minister for Immigration and Border Protection (the “Minister”) not to grant the applicant a Protection (Class XA) visa.
By orders of the Court made on 13 August 2013 the solicitors for the Minister were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing by 9 September 2013. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
By orders made by Judge Manousaridis on 13 August 2013 the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review by 18 March 2014 as well as any additional affidavits upon which he wished to rely. The applicant was also granted leave to file and serve an outline of written submissions fourteen (14) days before the hearing. The applicant filed an amended application on 18 March 2014 (the “Amended Application”). The applicant also filed an outline of written submissions on 28 April 2014.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a citizen of Sri Lanka who arrived in Australia in May 2012 as an irregular maritime arrival (CB 1) and applied for protection on 27 August 2012 after the Minister exercised his discretion to lift the bar under s.46A(2) of the Migration Act (CB 21-68).
The applicant claimed to fear harm on the basis of his Tamil ethnicity. He claimed that he had been threatened by a Sinhalese neighbour named [RB] who was in charge of an underground paramilitary group supported by the Sri Lankan government. He claimed that [RB] harassed and threatened him, and on one occasion beat him because of his ethnicity. He claimed that in 1998, his family moved to a predominantly Sinhalese village and since that time he experienced harassment and abuse from the local village people. He claimed that in December 2011, the local Sinhalese people spread rumours that a grease man was coming out of his house. He claimed that they broke the windows of his house and made life difficult for the applicant and his mother. The applicant claimed that these incidents were reported to the police, but the police did not assist him because [RB] was working with them. He also claimed that his father and uncle were associated with the Liberation Tigers of Tamil Eelam (“LTTE”) and as a result the police would visit his house and make enquiries.
In summary, the applicant claimed to fear persecution for a number of reasons including:
a)His ethnicity, being Tamil;
b)His actual political opinion, being in opposition to the Sri Lankan government and treatment of Tamils by the Sri Lankan government;
c)Imputed political opinion; and
d)His membership of the particular social groups identified as young Tamil men, people with family links to the LTTE. People suspected or accused of being members of, associating with or supporting the LTTE. It was also submitted that the applicant was living in fear of being harmed and that this was a form of psychological harm.
The Delegate’s Decision
On 5 September 2012, the applicant attended an interview with a delegate of the Minister in relation to his Protection visa application. The applicant’s representative provided written submissions for the delegate to consider (CB 80-88).
On 31 October 2012, the delegate found that the applicant was not a person to whom Australia owed protection obligations and refused to grant the applicant a Protection visa (CB 99-112).
The Tribunal’s Decision
On 5 November 2012, the applicant applied to the Tribunal for review of the delegate’s decision (CB 113). On 19 December 2012, the Tribunal invited the applicant to attend a hearing (CB 124). The applicant appeared at the hearing and gave the evidence and presented arguments with the assistance of a registered migration agent (CB 127).
On 14 June 2013, the Tribunal affirmed the delegate’s decision to refuse the applicant’s Protection visa (CB 169-189).
The Tribunal found that the applicant:
a)Was of Tamil ethnicity and that he resided in a small village in the North West province of Sri Lanka (CB 174 at [32]);
b)Did not provide a credible account of his reason for leaving Sri Lanka (CB 174 at [34]);
c)Was not a credible witness with respect to the harm he claims he faced from [RB], his neighbour who was the head of an underground paramilitary group (CB 174 at [36]). Specifically, the Tribunal rejected the applicant’s claim that [RB] had threatened to kill or seriously harm the applicant on multiple occasions and rejected that the applicant has a genuine fear that [RB] will harm him if he returns to Sri Lanka (CB 176 at [45]);
d)Was not a credible witness with respect to his claim that he is of interest to the Sri Lankan authorities on the basis of perceived or real links to the LTTE. Specifically, because the Tribunal found that the authorities never seriously suspected the applicant’s father (or any other family member) was involved with the LTTE, as a result, the Sri Lankan authorities did not and would not have an adverse interest in the applicant (CB 177 at [48] and 178 at [50]);
e)Would not face serious harm because of any adverse political connection imputed to him as a result of his Tamil ethnicity, his place of origin and activities in Sri Lanka which may lead to a suspicion or perception that he or his family members have a connection to the LTTE (CB 179 at [57]);
f)By reference to independent country information, by reason of his Tamil ethnicity or membership of a particular social group, namely young Tamil men, would not have a real chance of facing serious harm (CB 180 at [61]); and
The Tribunal also:
a)Found having regard to independent country information, the applicant’s personal circumstances and history, that there is not real chance that the applicant would be imputed with a pro-LTTE or anti-government opinion, because of his Tamil ethnicity, his illegal departure from Sri Lanka, his status as a failed asylum seeker or because he is a young Tamil male (or any combination of these factors) (CB 180, 183 and 185 at [65], [79] and [86]);
b)Considered, but rejected the applicant’s claim that his Hindu religion or support of the opposition party meant that he would face serious harm in Sri Lanka of his religious beliefs or activities or actual political opinion (CB 181 at [66]);
c)Found that any penalty or fine the applicant may suffer for departing Sri Lanka as a result of breaching the Immigration and Emigration Act would be as a result of a law of general application (CB 182 at [70]); and
d)Found that the applicant did not have a well-founded fear of persecution or satisfy the complementary protection criterion (CB 185 at [87] and CB 188 at [100]).
Current Proceedings
By an application for review dated 18 July 2013, the applicant seeks judicial review of the Tribunal’s decision. The applicant filed an Amended Application which replaced the grounds relied upon in the original application. The orders sought in the Amended Application are as follows:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
3. Costs.
4. Such further or other order as the Court deems fit.
The grounds of the Amended Application are as follows:
3. The Tribunal committed jurisdiction error when it failed to take into account that the uncle’s LTTE involvement may be discovered during questioning at the airport upon return to Sri Lanka.
Particulars
The applicant had claimed risk of harm owing to his deceased father’s suspicion of LTTE involvement. There was an uncle who involved in LTTE. The Tribunal found that the authorities based on previous situation the authorities did not have adverse interest. The Tribunal has not considered whether he would be of interest to the authorities had the father/ uncle’s link (at [50]) upon being returned to Sri Lanka (CB 177 at [47]-[48]); the simply considering the position before the applicant left Sri Lanka (at [57]) and rejecting it. The Tribunal has not considered the position were the Applicant to be returned.
4. The Tribunal misdirected inquiries as to the source of persecution and thereby committed jurisdictional error.
Particulars
The applicant claimed risk of harm at the “underworld paramilitary group” which associated with [RB] (CB 73 at [12]) and associated with Sri Lankan government. The Tribunal misdirected inquiries as to the “Underworld Party” source of persecution (CB 175 at [37]) although was loosely called “party” (CB 12).
5. The Tribunal fell into error in its consideration of complementary protection.
Particulars
The Tribunal conflated the complementary claim with the protection visa claim under the Convention. The applicant claimed that the Applicant would have to return o Sinhalese area (and could not relocate (CB 88), whether there would be arbitrary deprivation of life and risk of harm. The Tribunal’s failure to consider this constitutes jurisdictional error.
Applicant’s Oral Submissions
There appear to be inconsistencies between the Amended Application, the applicant’s oral submissions and the applicant’s written submissions. There is correlation between the applicant’s Amended Application and oral submissions; however, the written submissions only appear to loosely correlate to the applicant’s grounds or arguments. I will initially deal with the grounds in the Amended Application and the applicant’s oral submissions, and then separately I will deal with the applicant’s written submissions.
Ground 3 of the Amended Application claims that the Tribunal erred by not considering whether the applicant would be of interest to the authorities, if he was to return to Sri Lanka because of his uncle’s links to the LTTE. The applicant argued that the Tribunal only looked at the situation of whether the authorities were interested in the applicant prior to him leaving Sri Lanka and not of that of when or if the applicant was to return to Sri Lanka.
At the hearing the applicant claimed that the Tribunal member did not accept that his father was a Tamil and his father’s brother, who he referred to as his uncle, worked for the LTTE. The applicant claimed that the Tribunal did not accept these family connections to the LTTE and this was an error on the behalf of the Tribunal. The applicant claimed that he tried to explain his uncle’s connection with the LTTE, but the Tribunal Member stopped him and told him that they were only interested in hearing claims about the applicant only. The applicant claimed that he tried to elaborate on his claims at the Tribunal hearing, but he was stopped from doing so.
Ground 4 claims that the Tribunal misdirected its inquiries by considering whether or not the applicant would suffer persecution by a underground paramilitary group supported by the government, called the “Underworld Party” and not by an “underworld paramilitary group” associated with his Sinhalese neighbour, [RB], and the Sri Lankan government.
At the hearing the applicant stated that he had concern with the Minister’s submissions where it was stated that there were no connections between the paramilitary group and the police. The applicant stated that he also had concern with the Minister’s submissions where it was stated that the applicant left Sri Lanka because he was scared of the paramilitary group. The applicant claims that he feared the army and the police and that was the reason he left Sri Lanka.
The applicant also referred to his claim about the paramilitary group referred to as “Underworld”. The applicant claims that he referred to this group as underground, not underworld. The applicant claimed that he was confused by the Tribunal’s incorrect use of the term. The applicant stated that these terms were “mostly the same thing. Like, it’s not much difference, underground or underworld.” (Transcript, Federal Circuit Court Proceedings, 1 May 2014, p. 3.13-14). The applicant went on to explain that these people work illegally and there is no point trying to search for them on the internet as they will not be found. The applicant pointed out that this was one of the reasons his claim was rejected.
Ground 5 claims that the Tribunal conflated the applicant’s claim for complementary protection with his protection visa claims. The applicant did not elaborate this claim in his oral submissions.
At the hearing the applicant raised that his migration agent only informed the applicant that his attendance was required at the Tribunal hearing the evening before it was heard. He stated that he did not have enough time to prepare. The applicant also claimed that the Tribunal did not afford him the opportunity to make further submissions.
The applicant contends that his family is still being threatened back in Sri Lanka. He claims that his family are being told that if the applicant returns to Sri Lanka he will be arrested and that he will be killed.
Applicant’s written submissions
The Grounds identified in the applicant’s written submissions do not entirely correlate with the Grounds identified in the Amended Application. As such, on a fair reading thereof:
a)“Ground 2”, as identified in the written submissions, correlates to Ground 3 in the Amended Application (see [15] above);
b)“Ground 1” as identified in the written submissions, correlates to Ground 4 in the Amended Application (see [15] above); and
c)“Ground 3” as identified in the written submissions, correlates to Ground 5 in the Amended Application (see [15] above);
Ground 3 asserts that the applicant is likely to suffer persecution as a failed asylum seeker from the West. The applicant claims that the Tribunal committed jurisdictional error when it failed to consider the Convention nexus claim of the applicant social group when it failed to take into account that the uncle’s LTTE involvement may be discovered during questioning at the airport upon his return to Sri Lanka. The applicant claims that the Tribunal has not considered the Convention nexus claim of this social group.
The applicant claims that the Tribunal misapprehended this claim and has not dealt with it appropriately. The applicant submits that in the migration agent’s submissions, a claim is specifically made and the Tribunal failed to consider it, thus the decision is affected by jurisdictional error: see SZGOP v Minister for Immigration and Citizenship [2007] FCA 836 at [29]. The jurisdictional error is the failure to consider this Convention nexus, not only clearly arising on the material but the claim also being expressly made.
The applicant submits that the Tribunal further committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the applicant’s particular social group, being a returned asylum seeker. The applicant submits that he is a member of a distinct social group.
The applicant claims that the Tribunal has accepted as plausible the applicant’s father’s involvement in the LTTE. The applicant contends that the Tribunal was obliged to deal with a discrete basis for protection as put forward by the applicant: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24], [95]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]).
The applicant submits that in assessing the claims, the Tribunal has denied the applicant procedural fairness by not dealing with the claim following the procedure laid down in Dranichnikov (supra) at [26]-[28]. The applicant submits that the Tribunal’s failure to consider express claims clearly arising from the evidence constitutes jurisdictional error:NABEv Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [60].
In summary the applicant argues that the Tribunal failed to identify the applicant’s particular social group and did not deal with the claim, thereby committing jurisdictional error.
Ground 4 asserts that the applicant had claimed risk of harm expected from the underworld paramilitary group, as well as from the Sri Lankan government. The applicant notes that the Tribunal has accepted as plausible that paramilitaries may have been looking for the applicant.
The applicant claims that the Tribunal made a finding based on evidence that the applicant would not be pursued by anyone including paramilitary groups. The fear of harm from paramilitary groups was also a key focus. The applicant contends that his claim was wider and that probative enquiries were also required to assess whether there was a risk of harm from the paramilitary.
The applicant submits that there was no evidence before the Tribunal that the paramilitaries had the up-to-date arrivals and departure information. The applicant submits that the Tribunal misdirected its inquiries to state authorities who would persecute the applicant making findings not supported by evidence. It is also argued that the Tribunal conflated the issue of persecution by the paramilitary groups with State agencies. The applicant submits that the Tribunal committed jurisdictional error when it failed to address a claim put forward by the applicant and one which emerges clearly on that material. Htun v Minister for Immigration and Multicultural Affairs (2001) 197 ALR 244 at [13]-[14] per Merkel J; at [41]-[42] per Allsop J (as he then was); at [1] per Spender J; NABE (supra) at [68].
Ground 5 asserts that the Tribunal fell into jurisdictional error in its consideration of complementary protection. The Tribunal conflated the complementary claim with the protection visa claim. The applicant contends that if he were to return to a Sinhalese area (as argued in submissions by his migration agent at CB 88) there is a possibility that there would be arbitrary deprivation of his life and a risk of harm to him.
The applicant contends that the Tribunal failed to consider DZAAD v Minister for Immigration and Citizenship [2013] FCA 204 per Foster J at [38]-[49] while assessing the applicant’s claim against the complementary protection provisions, by reason of item 35 of Schedule 1 to the Migration Amendment (Complementary Protection) Act 2011 (Cth).
The applicant submits that the Tribunal failed to consider threshold of risk for complementary protection visa in light of SZRZM v Minister for Immigration and Border Protection [2013] FCCA 2018 at [29]-[128]. The applicant contends that the Tribunal’s failure to consider claims under complementary protection criterion the Tribunal failed to apply SZSRR v Minister for Immigration and Citizenship [2013] FCCA 1712 at [41]-[71].
Minister’s Submissions
The Minister submits that in Ground 3 that it is clear that the Tribunal considered the applicant’s claim to have had an uncle who was part of the LTTE (CB 177 at [49]), even though this claim was not mentioned in the applicant’s written submissions provided to the Tribunal by the applicant’s migration agent. The Tribunal rejected the applicant’s claim that he only became aware of his uncle’s involvement with the LTTE after his interview with the delegate and found that this claim undermined his prior claim that he had been questioned by the Criminal Investigation Department (“CID”) about the involvement of his father and uncle’s friends in the LTTE in 2006 or 2007. The Tribunal found that his claim that his uncle was involved with the LTTE was not credible.
The Tribunal went on to consider whether or not the applicant, by way of his background, Tamil ethnicity, place of origin or activities in Sri Lanka, would be imputed with an adverse political opinion or a perception that he or his family members had a connection with or was involved with the LTTE. The Tribunal rejected that the applicant would be viewed by the authorities in this way and concluded that there was no real chance that the applicant would be persecuted for those reasons if he returned now or in the reasonably foreseeable future (CB 179 at [57]).
The Tribunal’s conclusion that the applicant’s claim with respect to his uncle’s involvement with the LTTE was not credible is a finding of fact par excellence: see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. The High Court has recognised that, in determining whether an applicant has a “well-founded” fear of persecution, the Tribunal may need to resolved questions of credit, attribute weight to particular evidence and consider the inherent improbability of events: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282. As such, once the Tribunal had determined that the applicant’s claim that his uncle was involved with the LTTE was not credible, it was not under an obligation to consider whether these claimed connections would be “discovered” during his questioning upon return.
Alternatively, the Tribunal’s rejection of that claim, if it was in fact made, was ‘subsumed’ in the Tribunal’s more general reasons (Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [47], and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91]) for rejecting the claim that the applicant or the applicant’s family would be perceived by authorities to be connected or involved with the LTTE upon the applicant’s return.
The Minister submits that in reference to Ground 4 of the applicant’s statement of claims (CB 72 at [6] and [14]) and written submissions to the delegate and to the Tribunal did not refer specifically [RB]’s membership of a paramilitary group called the “Underworld Party”. They refer generally to [RB] as the head of an underground paramilitary group.
However, the delegate’s decision record shows that the applicant’s claims with respect to [RB] were as follows:
Mr [B] is the head of a paramilitary group called “Underworld”, which is well known within the village for its association with drugs and arms trading, and for keeping weapons at his home.
(CB 102)
The delegate made specific findings with respect to the criminal organisation called “Underworld” on the understanding that [RB] was claimed to be the head of it:
I find that his claims in relation to Mr [B], Mr [B’s] association with the Underworld group and the police are farfetched. I have not been able to find any reference to a criminal organisation in Chilaw or Sri Lanka more generally named Underworld.
(CB 103)
The Minister submits that it is possible that the delegate may have misunderstood the applicant’s claim that he suffered persecution from [RB], who was part of an underground paramilitary group, as opposed to a paramilitary group called “Underworld”. However, the applicant made no effort to correct this alleged misunderstanding of his claim in his subsequent submissions to the Tribunal on 1 February 2013 (CB 139-159). The applicant’s submissions were drafted by his representative, a registered migration agent.
The Minister submits that the Tribunal referenced the delegate’s findings in considering the applicant’s claim to fear harm from [RB]. The Tribunal noted that the applicant claimed that he had been harassed and threatened by [RB] who was the head of an “underground paramilitary group” (CB 172 at [18]) and later refers to the delegate’s interview with the applicant, at which the applicant expanded upon his claims to fear harm from [RB], who was the head of a paramilitary group called Underworld” (CB 173 at [24]).
The Tribunal then rejected the applicant’s claims that he faced serious harm from [RB] on the basis of the lack of credibility of a number of aspects of the applicant’s account of [RB] (CB 174 at [35]-[46]). One of the factors the Tribunal took into account was the applicant’s vague references and implausible evidence regarding RB’s involvement with the Underworld Party and its connections to powerful parliamentarians. The Tribunal specifically put to the applicant that no country information could be located with respect to an “Underworld Party” (CB 175 at [37]).
This finding was supported by a general finding that the applicant’s claim that [RB] was a member of an underground paramilitary organisation or an “Underworld Party” as “far-fetched” and “lacking in credibility” (CB 176 at [41]).
At its highest, this ground of review asserts that the Tribunal misconstrued the applicant’s claims by not considering whether or not [RB] was simply part of an underground paramilitary organisation generally. However, it appears that the Tribunal considered generally whether or not [RB] was a member of an underground paramilitary organisation (separately from considering whether or not [RB] was part of the Underworld Party) and relied on a number of other inconsistencies in the applicant’s evidence in rejecting the applicant’s claim that [RB] subjected the applicant to serious harm in the past and will do so now or in the reasonably foreseeable future (CB 174 at [35]).
Given that the delegate had already raised as an issue the credibility of the applicant’s evidence with respect to [RB] association with an underground paramilitary group (CB 103), the Minister contends that the applicant was on notice of the determinative ‘issue’ on review, namely the credibility of his claims and evidence in this context, and the applicant was given the opportunity to address those concerns at the hearing. In addition, the applicant was given ample opportunity to correct any misunderstanding when he received the delegate’s decision record. Accordingly, no breach of s.425(1) of the Migration Act is apparent.
The Minister submits that in Ground 3 the applicant contends that the Tribunal “conflated” the applicant’s claim for complementary protection with his protection visa claim.
The Tribunal expressly assessed the applicant’s claims with respect to complementary protection and found that based on the applicant’s evidence, profile and relevant country information, there are no substantial grounds for believing that there is a real risk that the applicant will face significant harm, even if he returned to his village (CB 186 at [92] and CB 188 at [99]).
Consideration
At the First Court Date directions hearing the applicant expressed the desire to participate in the RRT Legal Advice Scheme NSW. At the hearing the applicant indicated he had received that advice from the panel adviser allocated to him through the scheme.
Ground 3
I first address Ground 3 of the Amended Application. This ground pleads that the Tribunal has failed to consider what will occur to the applicant if he returns to Sri Lanka, given his father’s and uncle’s links to the LTTE and is critical of the Tribunal’s findings as it only considered the applicant’s position before he left. This ground is addressed in the applicant’s submissions under the heading “Ground 2”.
The Tribunal made its findings in respect of any adverse interest the Sri Lankan authorities may have in the applicant relating to LTTE links or perceived LTTE links at [47]-[50] of the Decision Record. Relevant to this ground, the Tribunal made findings in respect of the applicant and, particularly, his father at [48] of the Decision Record. It stated:
48. For the purpose of [t]his decision, I accept the applicant’s father, who died in 2005 of diabetes related problems, once lived in an LTTE controlled area in the East of Sri Lanka. I have considered the submissions of the applicant’s advisor that it is possible that the applicant’s family may have been accused of having links with the LTTE because of where they come from and that it is also possible that the applicant does not know about the extent of his family involvement with the LTTE. However, although I am prepared to accept it is possible that the applicant’s father may have been questioned about having LTTE connections before he died in 2005, I am not satisfied on the evidence before me that the authorities ever had any adverse interest in the applicant because of his perceived links to the LTTE or that they seriously suspected the applicant’s father or any other family member of the applicant was involved with the LTTE.
(CB 177)
The applicant’s submission that the Tribunal accepted as plausible his father’s involvement with the LTTE is misplaced. At [48] of the Decision Record, the Tribunal accepted it was possible the applicant’s father may have been questioned about having LTTE connections, but was not satisfied the applicant’s father or any other family member of the applicant was involved with the LTTE.
In respect of the applicant’s uncle’s claimed links with the LTTE, the Tribunal made its findings at [49] of the Decision Record. It stated:
49. At the hearing the applicant claimed he was questioned by the Criminal Investigation Department at his home about the involvement of his uncle and his father’s friends in the LTTE. His evidence on this point was very vague – asked when he was questioned after the death of his father he said he didn’t really know about dates and then later suggested it may have occurred in 2006 or 2007. When asked why he didn’t mention his uncle’s involvement in the LTTE in his written claims, he intimated he now knew about his uncle because after the interview he spoke to his mother and came to know about his uncle’s involvement in the LTTE. I do not accept this explanation and consider that it undermines the applicant’s claims to have been asked by the CID about his uncle’s involvement in the LTTE in 2006 or 2007. Accordingly, I do not accept that the applicant’s claim that his uncle was involved with the LTTE is credible or that he was ever questioned by the authorities about his familial links to the LTTE.
(CB 177)
In respect of any complaint about this finding, I find the Minister’s submissions reproduced above at [40] above accurately address any issue taken by the applicant with the Tribunal’s finding relating to his uncle, which were findings of fact par excellence. Once the Tribunal found the applicant’s uncle had no LTTE connections it was under no obligation to then consider whether these purported connections would be determined when he returned.
The applicant has further expanded on this ground in his written submissions by stating there has been a failure by the Tribunal to deal with one of the applicant’s claims. The applicant has cited the authority of Dranichnikov (supra) at [24]. His Honour Gleeson CJ stated therein at [24]-[28]:
24. To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the tribunal. This followed from the language of s 476(2)(a) of the Act (as it was when the applications were made)1 which provided as follows:
(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision …
25. The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution. It is to that question that we will now turn.
26. At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.
27. The tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov's membership of a social group, namely, of “businessmen in Russia” was a reason for his persecution and relevantly nothing more. The tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.
28. It seems to us that had that question been addressed it would in all likelihood have permitted of one only answer, an affirmative one. This is so because the tribunal accepted Mr Dranichnikov as a witness of credit, and therefore the correctness of his account of his activities, and their climax, the violent assault which he suffered.
The applicant also referred to the authority of Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 and put forward the claim that the applicant identified a social group he was part of, but failed to assess his risk of persecution as against that social group. However, what the applicant has failed to do in either written or oral submissions is identify what social group he was part of that has not been addressed by the Tribunal in its Decision Record, which is fundamentally different to the case of Dranichnikov (supra).
At [26] of the Decision Record the Tribunal stated the social groups that the applicant’s advisor claimed the applicant was a member of, being “young Tamil men”, “people with family links to the LTTE”, and “people suspected or accused of being members of, associating with or supporting the LTTE”.
The Tribunal made findings in respect of the first noted group under the heading “Whether the applicant would face harm for reasons of his Tamil ethnicity” at [58]-[61] of the Decision Record and, in my view, these findings were open to it on the material before it. Further, any claim in respect of young Tamil men is subsumed therein and has been expressly addressed.
In respect of the second noted group, the Tribunal made its findings at [47]-[50] of the Decision Record under the heading “Whether the applicant has been questioned by the Sri Lankan authorities about his links to the LTTE” where it found it was not satisfied he had any family links to the LTTE. It made further findings about any harm that may come of his claimed family links to the LTTE at [57] of the Decision Record if returned to Sri Lanka.
In respect of the third noted group, the Tribunal considered the applicant’s claimed membership of that social group under the headings “Whether the applicant would face serious harm because of his imputed political opinion” and more broadly “Whether the applicant would face harm because of his actual/imputed political opinion”. The Tribunal found the applicant would not be persecuted on the basis of any imputed political opinion, actual political opinion, having links with the LTTE and/or its members or supporting the LTTE and/or its members.
In respect of this claim, the applicant has failed to identify in his submissions any other particular social group, of which the applicant is a member, the Tribunal has failed to address in its decision. Further, the applicant has failed to identify a claim made by him before the Tribunal that has not been addressed by the Tribunal. Accordingly, this submission cannot be sustained.
At the hearing, the applicant also stated that he was prevented from giving evidence in respect of his and his family’s LTTE connections by the Tribunal Member who constantly interrupted him. No affidavit evidence attaching a transcript of the Tribunal hearing was filed with the Court and this claim was not addressed in the application, Amended Application or written submissions.
In my view, the applicant is attempting to establish that there was apprehended or actual bias on the part of the Tribunal. In SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 his Honour Robertson J (Allsop CJ and Flick J agreeing) stated at [71]-[75]:
71. The appellant submitted that the judge erred firstly in failing to recognise that the Tribunal’s prior conduct would have given rise to an apprehension of bias, and secondly in applying the apprehension of bias test as if actual bias were in issue. The appellant also submitted that the judge took into account irrelevant considerations being that the Tribunal “had not closed her mind”, that a particular expression “was ultimately of no consequence to the review” and the finding that the Tribunal ultimately took into account post-hearing submissions.
72. The two most relevant decisions on which the appellant relied are Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [29]–[31] and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [16]–[19].
73. In the former case the High Court confirmed that even in inquisitorial proceedings the test was one of objective possibility, saying, in applying that test to proceedings of the Tribunal:
32. In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor’s evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal’s preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor.
The test as so explained is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. In deciding the issue, the court determines the issue objectively: see per McHugh J in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [68].
74. In NADH of 2001, the Full Court said:
20. At least in the absence of the identification of some prejudice or interest in the tribunal, for a complaint of apprehended bias based on the conduct of the tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.
75. The whole of the transcript of proceedings must be reviewed rather than sentences taken in isolation.
In these proceedings the applicant has failed to file any evidence attaching a transcript of the Tribunal hearing. Further, the applicant was also represented by a migration agent before the Tribunal and no claim was made in relation to the Tribunal Member preventing the applicant from answering questions, giving evidence or making submissions in support of his claim. In the absence of a transcript of the hearing or any other evidence supporting the claim by the applicant, it must be dismissed (see SZBYJ v Minister for Immigration & Anor [2005] FMCA 1927 per Driver FM (as he then was)).
Accordingly, none of the elements of Ground 3 of the Amended Application, part 2 (“Ground 2”) of the written submissions or the oral submissions made by the applicant in support of this ground can be sustained and must fail.
Ground 4
Ground 4 of the Amended Application pleads that the Tribunal misdirected its enquiries relating to the applicant’s claims that, if he were returned to Sri Lanka, he would be persecuted by an “Underworld paramilitary group” which is associated with [RB] and the Sri Lankan government. The applicant claims the Tribunal wrongly directed inquiries in this respect and refers to [37] of the Decision Record where the Tribunal stated:
37. Second, I consider that the applicant’s claims that [RB] was involved in an Underworld Party and had connections to powerful parliamentarians to be extremely vague and lacking in relevant and plausible detail. The applicant made vague references to [RB] working for a parliamentarian and said if there was any thuggery [RB] would be involved and that he might be involved in white van abductions. He referred to seeing [MS] (a Sri Lankan government minister) and [RB] together at festivals. The applicant’s claims to face harm from [RB] are not otherwise credible by reason of consistency with country information (as I put to the applicant at the hearing, no information could be located about an Underworld Party).
(CB 175)
In the applicant’s Statement of Claims, made on 27 August 2012 (CB 72-74) contains two brief references to [RB]:
Why I left that country.
…
6. In May 2009, I was invited to the house of a Sinhalese acquaintance of mine. His father (named [RB]) however was the head of an underground paramilitary group. On that day my friend became drunk and when his father found out, he approached me and swore at me and insulted me with offensive words and humiliated me because of my race. He also hit his son for inviting a Tamil into his house. I was very upset. I went home and explained the incident to my mother. [RB] later harassed my mother in the street on a number of occasions.
(CB 72)
In response to the question “Do I think the authorities of my country can and will protect me and or my accompanying family members, where applicable, if I were to go back.” The response at [14] of the Statement of Claims, states:
14. No. The Sinhalese government would never offer a vulnerable Tamil like me any protection against the head of a Sinhalese paramilitary group which is acting on their orders with absolute impunity.
(CB 74)
In the Decision Record, under the heading “Whether the applicant’s claims to face serious harm from [RB] are credible”, the Tribunal at [35] states:
35. For the reason that follow, I do not accept the applicant’s claims that a man called [RB] his threatened to kill him or otherwise cause him serious harm are credible.
(CB 174)
The Tribunal then. In the following paragraphs, sets out five reasons for this finding, which are as follows:
a)…if the applicant was indeed a person of interest to [RB], [RB] would have been able to execute his threats after the incident in February 2012 and before the applicant left the country in May 2012…(at [36] (CB 174));
b)…the applicant’s claim that [RB] was involved in an Underworld Party and had connections to powerful parliamentarians to be extremely vague and lacking in relevant and plausible detail… (at [37] (CB 175));
c)…I have difficulty accepting that [RB] would be at Chilaw police station and Udappu police station on the two occasions the applicant was taken to the police station for questioning… (at [38] (CB 175)); and
d)…I consider the applicant’s evidence about the circumstances in which he and his mother were accused of harbouring a grease man and then taken to the Chilaw police station to be interrogated in the presence of [RB] was vague and lacking in credibility … (at [39] (CB 175));
e)… I consider the evidence indicates that the applicant did not leave Sri Lanka because he had a genuine fear of persecution arising from the claimed altercation in February 2012 but because he wanted to travel abroad for other reasons… (at [40] (CB 175)).
The Tribunal summarises its findings at [41], which states:
41. While I am prepared to accept that the applicant may have had a Sinhalese neighbour call [RB] who may have, on occasion, made offensive and racist remarks to the applicant and his mother, I do not accept that the applicant had an altercation with [RB] in February 2012 in which [RB] threatened to kill him and nor do I accept that [RB] has ever threatened to kill the applicant. I do not accept the applicant’s claim that [RB] drew a gun on him or threatened to have him abducted by a white van in February 2012 or that he ever threatened to kill or cause serious harm to the applicant. I reject as far-fetched and lacking in credibility the claim that [RB] was a member of an underground paramilitary organisation or an Underworld party.
(CB 176)
A further finding is made by the Tribunal at [45] of the Decision Record where it stated:
45. Having considered the applicant’s evidence, I do not accept that a man called [RB] threatened to kill the applicant or that the applicant has a genuine fear that [RB] will harm him if he returned to Sri Lanka. While I am prepared to accept that the applicant may have had a neighbour called [RB] who made racist and derogatory remarks about the applicant and his mother and verbally threatened him two or three years ago at a Christmas party, I do not accept that the applicant was subject to significant physical mistreatment or threatened with serious harm by this person.
(CB 176-177)
I note Ms Given’s written submissions at [42]-[46] addressed the issue that the delegate, in his decision may have misinterpreted the use of the word “underground” and “underworld” and I agree with her argument that the applicant retained the services of Australian Migration Options Pty Ltd to represent the applicant in his application to the Tribunal for review of the delegate’s decision and as part of that application, prepared written submissions (CB 139-159). In those submissions, there is no specific reference to this apparent misunderstanding that it now being alleged to have existed in the delegate’s decision in inadequately addressed by the Tribunal. The applicant’s submissions were prepared by a registered migration agent, retained by the applicant, who had access to all of the relevant material necessary for the preparation of the application before the Tribunal. A self-represented litigant may not have been aware of these issues, however, when a registered migration agent is retained to prepare a review application in response to a published decision of the delegate and, having access to the applicant to discuss the nature and circumstances of his claim, it is difficult to accept that this was a significant issue being advanced by the applicant before this Court when there was no reference to the issue in the applicant’s submissions to the Tribunal. I agree with Ms Given’s submissions that the applicant was given an opportunity to address concerns expressed by the delegate in the review application to the Tribunal, but this did not occur. I am satisfied that this ground cannot be sustained and must fail.
Ground 5
Ground 5 of the Amended Application claims the Tribunal conflated the applicant’s claims under the Convention and under the complementary protections provisions of the Migration Act. Specifically, the applicant states he made claims before the Tribunal that he would, if returned to Sri Lanka, he would have to go back to a Sinhalese area and would not be able to relocate. He also made claims about whether there would be arbitrary deprivation of life and risk of harm.
The applicant’s written submissions cite a number of authorities that have addressed the complementary protection provisions of the Migration Act set out in s.36(2)(aa) of the Migration, however, none of these authorities are of any assistance to the applicant.
The Tribunal undertook its assessment of the applicant’s complementary protection claims at [88]-[100] of the Decision Record. It expressly assessed the applicant’s claims with respect to complementary protection and found based on “the applicant’s evidence, profile and relevant country information, there are not substantial grounds for believing that there is a real risk that the applicant will face significant harm … after the applicant returns to Udappu” (CB 188 at [99]). The Tribunal also made similar findings at [92] of the Decision Record. The definition of significant harm in the Migration Act (see s.36(2A)) includes the arbitrary deprivation of life. Once the Tribunal made its finding that there was not a real risk the applicant would suffer significant harm if he went back to his village, any claim about relocation fell away. Further, in my view, the findings of the Tribunal in this respect were open to it on the material before it.
During the hearing, the applicant did not make any submissions in support of this ground. Accordingly, this ground must fail and should be dismissed.
Applicant’s Oral Submissions
The remainder of the applicant’s oral submissions can be separated into two elements.
The applicant made submissions in respect of his substantive protection claims and took issue with a number of factual findings. These submissions seek to engage the Court in impermissible merits review and cannot be sustained (Wu Shan Liang (supra)). It is not the role of this Court to decide if the applicant should receive a Protection visa, it is the role of the Court to ascertain if there is any error of law in the Tribunal’s decision.
The applicant also made submissions relating to the conduct of his former migration agent in respect of the Tribunal hearing. He stated that he had not been given enough time to prepare his documentation, only found out there was a hearing on the night before the hearing was to occur and was not actually given an opportunity to file post-hearing submissions.
The applicant’s application for review filed in the Tribunal (CB 113-119) nominated his then representative as the person to whom all correspondence from the Tribunal should be sent (see CB 116 at “Part B”). A valid invitation was sent to the applicant’s representative inviting the applicant and his representative to a hearing by way of letter dated 19 December 2012 and dispatched by post on the same day. The hearing took place on 17 January 2013. Section 441C(4)(a) of the Migration Act states that a person is taken to have received a document sent to them by prepaid post 7 working days after the date of that document. Accordingly, the applicant is taken to have received the document on 28 December 2012, noting two public holidays had taken place.
Subregulation 4.35D(3) prescribes that the period of notice that must be given to a person (not in immigration detention) receiving an invitation to appear before the Tribunal (see s.425A(3) of the Migration Act) is 14 days after the day the person receives the notice. Accordingly, the 14 day period in respect of the applicant in these proceedings ended on 11 January 2013. Given the hearing before the Tribunal took place on 17 January 2013, I am satisfied the Tribunal complied with the relevant statutory requirements in respect of validly inviting the applicant to hear. I further note for completeness that the invitation was posted to the address of the applicant’s then authorized representative.
To the extent, if any, the applicant pleads fraud on the part of his former migration agent, I note the authority of the Full Court of the Federal Court in SZSXT v Minister for Immigration and Border Protection (2014) 307 ALR 31 where their Honours Perram, Robertson and Griffiths JJ, applying the principles set out by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, stated at [51]-[52]:
51. SZFDE establishes the following principles (omitting case references):
(a) in the framework of general legal principle, fraud can come in various guises and is “infinite in variety” (at [8]);
(b) different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution (at [11]);
(c) “fraud” can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses “bad faith” (at [17]);
(d) in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud (at [20]);
(e) another practical aspect of fraud in public law which may set it apart from fraud in civil law is that “often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted” (at [22]);
(f) in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative (at [25]–[27]); and
(g) there was no necessity in SZFDE to determine at large and in generally applicable terms the scope for judicial review for “third party fraud” of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at the time: at [28]. But in the particular circumstances in SZFDE the rogue’s fraudulent dealings with the family had the effect of disabling the tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud “on” the tribunal which meant that the tribunal’s jurisdiction remained constructively unexercised (at [51]–[52]).
52. It is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention. In Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 ; 100 ALD 443 ; [2008] FCAFC 17, the Full Court (Tamberlin, Finn and Dowsett JJ) emphasised the necessity of demonstrating that an agent’s fraud in dealing with a visa applicant has resulted directly in a fraud on the tribunal in discharging its decision-making functions.
At the hearing, the applicant made two statements that, in my view, invited the Court to ascertain if fraud on the Tribunal had occurred. The first is that the applicant was only invited to the Tribunal hearing the night before the Tribunal hearing was to take place. This allegation, noting the comments above addressing the validity of the invitation and the available evidence before the Court, cannot be sustained.
The applicant also complains he was not given enough time to prepare submissions, statements or supporting evidence. There is no evidence to support such a claim and nothing appears in the Decision Record that purports to be a request for the applicant for more time. The Tribunal did, however, note that it had received and had regard to the applicant’s post-hearing written submissions and supporting documents received on 1 February 2013, despite the applicant claiming he had not been afforded an opportunity. Accordingly, these claims cannot be sustained on the available evidence before the Court.
At the hearing the applicant made oral submissions, effectively, in support of his substantive protection claims. These submissions seek to engage the Court in impermissible merits review and cannot be sustained.
The “WZAPN” Issue
This matter came before the Court for hearing on 1 May 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
Accordingly, none of the applicant’s pleaded grounds can be sustained. Further, a fair reading of the Decision Record and Court Book reveals no error on the part of the Tribunal.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
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