SZTDT v Minister for Immigration
[2015] FCCA 1666
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTDT v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1666 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa –Consideration of WZAPN issue – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) ,46A(2), 91R |
| Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 75 ALD 630 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 |
| Applicant: | SZTDT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1795 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 6 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Ms M Byers |
| Solicitors for the First Respondent: | Ms S Given of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The Application, as amended, be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
SYG 1795 of 2013
| SZTDT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in this Court on 1 August 2013 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1302323, a decision of Tribunal Member A. Mullin dated 27 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.
The solicitors for the Minister filed on 11 September 2013 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”.
The applicant was granted leave on 4 March 2014 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely. The applicant filed:
a)An amended application on 11 November 2013;
b)The affidavit of Michaela Byers, affirmed 10 March 2014 and filed on 11 March 2014 (the “Byers Affidavit”). The Byers Affidavit annexes a copy of the transcript of the applicant’s Tribunal hearing (the “Transcript”); and
c)Written submissions on 26 May 2014.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant, a citizen of Sri Lanka, entered Australia as an unauthorised boat arrival and participated in an Entry Interview on 19 July 2012 (CB 8-25). On 12 September 2012, the applicant was given notification of a decision under s.46A(2) to allow him to lodge a Protection (Class XA) visa application (CB 26), which he did on the same day (CB 27-53, 58-92) attaching a Statutory Declaration (CB 54-57). The applicant was represented by a migration agent who made 2 written submissions to the delegate on his behalf on 20 September 2012 and 23 September 2012 respectively (CB 92-108).
As was set out by the Tribunal in its reasons for decisions, by those written submissions (referred to in the previous paragraph) the applicant claimed to fear persecution in Sri Lanka at the hands of security agencies and their affiliated paramilitary organisations on the Convention grounds of:
a)His Tamil race;
b)His real or imputed political opinion arising for his Tamil race; and
c)His membership of a particular social group consisting of “Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia.”
In addition the applicant claimed he satisfied the complementary protection criterion (see CB 162 at [12]).
Tribunal’s Decision
By reference to the 4 claims raised, as set out in [6] above, the Tribunal made findings in its Decision Record as follows:
a)Tamil race or ethnicity: CB 171-172 at [25]-[28];
b)Political opinion: CB 170-171 at [20]-[24];
c)Particular social group consisting of “Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia.”: CB 172-173 at [29]-[36]; and
d)Consequent upon those factual findings, that he satisfied the complementary protection: CB 174-175 at [39]-[41].
The Tribunal had strong doubts about the credibility of a number of the applicant’s claims (CB 169-170 at [18]-[19]). Those findings led the Tribunal to an overall conclusion that it was not satisfied that the army, other authorities or named paramilitary groups had ever displayed interest in the applicant after 2005. The Tribunal was not satisfied that the applicant had been searched for or that there was any reason to believe he was currently wanted by the authorities or paramilitary groups in Sri Lanka (CB 170 at [19]).
Having regard to independent country information, the Tribunal was not satisfied that the authorities or anyone else held a suspicion that the applicant was an LTTE member after his release from arrest in 2005 or that simply because the applicant was Tamil he would be suspected of having a pro-LTTE political opinion (CB 170 at [20]-[21]).
The Tribunal was also not satisfied that the applicant’s claim his cousin had been killed on suspicion of being an LTTE member was credible (CB 170 at [20]). Further, it was not satisfied that the applicant’s geographic origins would result in suspicion of him holding an adverse political opinion, or that the applicant would be suspected of holding such a political opinion by reason of his travel to Australia by boat or his having sought asylum (CB 171 at [22]-[23]). Accordingly, the Tribunal was not satisfied that the applicant would be suspected of holding a political opinion in favour of the LTTE in the past or on his return (CB 171 at [24]).
On the basis of further independent country information, the Tribunal was not satisfied that the applicant would face serious harm because of his Tamil ethnicity. The Tribunal was also not satisfied that there was anything in the applicant’s personal circumstances which would create a real chance that he would suffer serious harm on the basis of his ethnicity (CB 172 at [28]).
The Tribunal considered the applicant’s claim to fear harm on the basis of his illegal departure and his status as a failed asylum seeker in light of independent country information. The Tribunal accepted that the applicant would be subjected to processing on his return to Sri Lanka, but was not satisfied that this would involve him being targeted in a discriminatory fashion because of his ethnicity. It was also not satisfied that the applicant would be subjected to harm on arrival because of his profile (CB 173 at [32]). The Tribunal was not satisfied that there was a real chance the applicant would be imprisoned or subjected to penalties other than a fine and it was not satisfied the applicant being questioned, detained or fined could reasonably constitute serious harm (CB 174 at [35]-[36]).
Considering his claims individually and cumulatively, the Tribunal was not satisfied the applicant had a well-founded fear of persecution for a Convention reason (CB 174 at [37]-[38]). The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function. These findings were open to the Tribunal on the evidence before it.
The Tribunal also was not satisfied that the applicant would face significant harm while being held by the Sri Lankan authorities in connection with his illegal departure, or whilst detained awaiting bail (CB 175 at [40]). As such, it found that the applicant did not satisfy the complementary protection criterion (CB 175 at [41]). The Tribunal applied the correct test in assessing the applicant’s complementary protection claims, and the findings that it made were factual findings that were open to it to make on the available material.
Current Proceedings
The further amended application pleads the following grounds of review:
1. The Tribunal has failed to consider the full integers of the applicant’s claim under complementary protection.
Particulars
1. The Tribunal failed to address and deal with this claim as put by the applicant, instead dealing with the limited issue relating to the harm he may experience at the airport and from the Government as opposed to squarely raised claim that he would face harm;
b. From the Government an[d] allied paramilitary groups;
b. Upon his return to Sri Lanka and not confined to the airport; and
c. For reasons that may be unknown to him.
2. Because the Tribunal failed to consider all the integers of the claim advanced by the applicant, it failed to complete the exercise of jurisdiction.
2. The Tribunal has failed to apply the correct text under section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
1. The Tribunal failed to apply the real chance test to the Applicant’s claims and appears to have favoured a balance of probabilities formulation.
Applicant’s Submissions
The applicant’s submissions turn on the fact that the Tribunal has expressly failed to deal with the applicant’s claims under the complementary protection provision and/or applied the incorrect test to those claims.
The Tribunal made express findings to the effect:
a)That the applicant is a national of Sri Lanka (CB 168 at [16]);
b)That he was ethnically Tamil (CB 168 at [16]);
c)That was born in Batticaloa, worked as a fruit vendor and labourer and as a cleaner in Abu Dhabi (CB 168 at [16]); and
d)That he was given the benefit of the doubt about the claims to have been detained and beaten by the army in 2005 (CB 169 at [17]).
Although other aspects of his claim to have experienced harm from the army, the Karuna and the Pillayan paramilitary organisations “on suspicion that he was involved with the LTTE” (CB 169 at [18]), it is critical that these findings dealt only with the claim that he was currently wanted by these groups rather than the express claim that he may face harm if he interacts with them for reasons that are not known to him. This was a claim expressly advanced by the applicant’s advisors (see Transcript at pp.42-43). This was a claim that was residual and simply not dealt with by the Tribunal under the complementary protection provision, where a claim need not be attached to a Refugee Convention-related reason.
In dealing with the applicant’s claims under the complementary protection provisions, the Tribunal expressly confined the claims to those submissions advanced by the applicant’s advisor (CB 175 at [39]), but then failed to deal with the general claim to fear significant harm at the hands of these paramilitary groups, irrespective of whether he is believed as to what their motivations are. The applicant submits that this is a finding which, if accepted, might have led it to make a different finding in respect of his claims under the complementary protection criterion: Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 75 ALD 630 per French, Sackville and Hely JJ at [46].
The applicant submits that the inference that the Tribunal has failed to consider an issue arises on a higher basis than merely the failure to address these issues in its standalone paragraphs dealing with complementary protection (namely, [39]-[41] of the Decision Record). The inference arises:
a)On the basis that a residual, substantial, articulated claim arises on the facts not in dispute;
b)The claims include an expressly articulated claim by the Applicant’s advisor – and may be said to relate to the general lawlessness said to exist in Sri Lanka and the arbitrary decision making that lawless groups engage in; and
c)It also may be said to include his claim to fear harm by virtue of his 2005 interactions with the army – again not expressly dealt with the Tribunal under complementary protection.
Further, the Tribunal made no express reference to any claims made by the applicant to face harm from the paramilitary groups allied with the Government, or to face harm once he had proceeded through the airport and back into Sri Lankan society (CB 175 at [40]).
The applicant submits that in circumstances where an issue is raised as a material issue by the evidence, a failure by the second respondent to deal with it amounts to a constructive failure to exercise jurisdiction: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]; Dranichnikov v Minister v Immigration and Multicultural Affairs (2003) 197 ALR 389 at [23], [26]-[27], [86]-[89].
Because the Tribunal failed to consider all the integers of the claim, it failed to complete the exercise of jurisdiction embarked upon: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J (as he then was).
The applicant further submits:
a)In dealing with the applicant's claims under complementary protection, it is also established that a decision-maker is required to correctly construe and consider claims (and component integers thereof) made by an applicant or apparent on the face of the material before him: Dranichnikov (supra) at [22]-[24], [27] per Gummow and Callinan JJ; [88]-[89] per Kirby J; [95] per Hayne J; and
b)The Tribunal's obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate's decision on the basis of all the materials before it: NABE (supra).
In these circumstances, the reasoning of the Full Court in Applicant WAEE v Minister for Immigration and Multicultural Affairs (supra)(at [45]) is enlivened:
If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s414 to conduct a review of the decision. This is a matter of substance, not a matter of form of the Tribunal's published reasons for decision.
It is noted that the Tribunal’s narrow and artificial construction of the applicant’s claims under the complementary protection provision mirror the approach adopted by the delegate below – where it is clear that the delegate has misdirected himself as to the burden of proof said to occur under the complementary protection provision (CB 132-3).
In dealing with issues said to arise at the airport, the applicant submits that the Tribunal misdirected itself on the appropriate test.
In short compass, the applicant submits:
a)that the focus of consideration under the test for complementary protection as per s.36(2)(aa) of the Migration Act turns on the Minister having substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country;
b)this may be contrasted to the formulation under the Refugee Convention and otherwise requiring the subjective fears of the applicant to be made out as per s.91R(1) of the Migration Act;
c)in those circumstances, the adverse credit findings made against the applicant's claims to have been detained overnight by the Sri Lankan army, being approached by unknown people in October 2011 and being kidnapped by a paramilitary group cannot be given determinative weight in disposing of the applicant's claims;
d)the correct test under complementary protection is as stated by the majority of the full Court in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 is adopted at [246]-[247]:
246. In our opinion, the test is as for s 36(2)(a) and as stated by SZQRB – is there a real chance that SZQRB will suffer significant harm (as that is defined in s 36(2A)) were he to be returned to Afghanistan.
247. That being the case, the ITOA applied the wrong test in considering SZQRB’s entitlement for Australia’s protection obligations under the CAT and ICCPR as defined in s 36(2)(aa) and s 36(2A). The ITOA assessed SZQRB’s claims as against whether it was “more likely than not” that SZQRB would suffer significant harm, which was not the appropriate standard. The “Departmental policy”, if the ITOA was right to describe it that way, was not in accordance with Australian law.
248. SZQRB’s contention that the ITOA was not carried out according to law must be accepted on that ground alone.
The applicant submits that by focussing on the likely penalties as opposed to the real chance that the applicant would be exposed to penalties of the type squarely raised by the applicant's advisors, the Tribunal has applied the incorrect test at law.
In the instant matter, the Tribunal failed to address and deal with this claim put by the applicant, effectively sidestepping the issue as squarely raised by the applicant's advisors as to the applicant's exposure to penalties under the and focussing instead upon the likely penalties and delay he may experience at the airport.
The application should be granted with costs.
Minister’s Submissions
Proposed ground 1
This ground essentially alleges that the Tribunal failed to consider the full integers of the applicant’s claims under the complementary protection criterion heading.
As was the case before the Court on appeal in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, this proposed ground of review is cast in terms of a failure to consider a claim squarely raised, as that concept is understood by reference to Htun v Minister for Immigration and Multicultural Affairs (supra) at [42]; Dranichnikov v Minister for Immigration and Multicultural Affairs (supra) at [22]–[24], [27] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (supra) at [58]–[61].
As was established in SZSGA (supra) (at [56]-[57] per Robertson J) there is no jurisdictional error constituted by a Tribunal referring to its previous findings of fact under the complementary protection provisions as articulated, particularly where:
a)Those claims could not survive earlier findings of fact; and
b)Where the Tribunal addresses the criterion by reference to the language of the statute and its particular findings of fact which led to the conclusion that the Tribunal did not accept the appellant’s claim.
The claim which is now said to have been squarely raised on the material before the Tribunal, and then not dealt with as part of the complementary protection finding, is comprised of three compound integers, namely that the applicant would face harm:
a)from government and paramilitary groups;
b)in Sri Lanka generally (not just at the airport); and
c)“for reasons that may be unknown to him”.
The applicant alleges firstly that there was a failure to consider harm he faced from government and paramilitary groups. Given that is not uncommon (and as set out in [33] above, plainly not an error) for the Tribunal to refer to its earlier factual conclusions in respect of Convention grounds, when addressing complementary protection, regard must be had to the Tribunal’s findings as to the government and paramilitary groups.
In respect of those the Tribunal made comprehensive, and overarching findings as to any adverse interest from the army or paramilitary groups concluding that there was no reason to believe the applicant was wanted by the authorities or paramilitary groups (CB 169 to 170 at [18] to [19]).
The Tribunal then went on to specifically consider what, if any, imputed political opinion may be imputed to him by reason of being a failed asylum seeker (CB 171 at [23] and CB 173 to 174 at [30] to [36]).
The suggestion that the Tribunal failed to consider harm to the applicant on return to Sri Lanka at large, and not just confined to immediate events at the airport can also not be borne out by reference to paragraphs [23], [31], [32], [33], [34] and [36] of the Tribunal’s Decision Record.
The suggestion (see [21] above of the applicant’s submissions) that the Tribunal did not make express findings to any claims by the applicant once he had proceeded through the airport and into Sri Lankan society, is misguided. The entire of the Tribunal’s factual finding assessment was directed to a consideration of what harm the application would face upon his return, having regard to past events in order to assess it. There can be no suggestion that the Tribunal assessed only circumstances of potential harm at the airport and assessed nothing thereafter, either from paramilitary groups or any other person or organisation.
The assertion in proposed ground 1, and at [19] above of the applicant’s submissions that the Tribunal was required to address a claim of harm from such groups for reasons unknown is, with respect, plainly absurd. In respect of s.36(2)(a) of the Migration Act (read in conjunction with s.91R of the Act) the motivation of the persecutor is essential: see Ram v Minister for Immigration and Ethnic Affairs & Anor (1995) 130 ALR 314 at 317 per Burchett J (O’Loughlin and Nichols JJ agreeing). As to the complementary protection criterion, the language of the statute requires that there be “substantial grounds for believing” that by reason of removal there is a real risk of significant harm. One cannot have substantial grounds for believing a matter of pure speculation.
As was determined by Judge Nicholls in relation to a similar ground in SZSJC v Minister for Immigration and Border Protection & Anor [2013] FCCA 1755 at [68]-[69]: “The Tribunal is not required to consider the complementary protection criterion in the abstract. The Tribunal’s consideration must be with reference to the facts as presented.”
The ground is entirely unsustainable and should be refused leave on the basis that it raises no arguable ground for relief.
Ground 2
This ground asserts that the Tribunal applied a balance of probabilities test when considering complementary protection. It is also unsustainable given the Tribunal’s clear application of the language of the statute. The applicant’s written submissions state that the indicia of this misapplication is seen by the Tribunal “focussing on the likely penalties as a opposed to the real chance that the applicant would be exposed to the penalties”. Contrasted to the explicit finding by the Tribunal that:
“I am not satisfied that there is a real chance that the Applicant would suffer imprisonment or that he would be subjected to penalties other than a fine”
(emphasis added)
The ground, and submissions are misguided and baseless.
In the Complementary protection section of the Tribunal decision, the Tribunal found that it was not satisfied as to the credibility of the applicant’s claims that he would suffer “serious harm on return to Sri Lanka for the reasons he has claimed” (CB 175 at [40]). The Tribunal goes on to state that it is not satisfied that treatment on his return could be seen as amounting to serious harm in a Convention sense or “significant harm in terms of Australia’s complementary protection arrangements” or for any other reason (CB 175 at [40]).
The Tribunal engaged with the language and the substance of the Migration Act in its consideration of s.36(2)(aa) and the proposed further amended application should be refused leave, and the matter dismissed, with costs.
Consideration
Ground 1
Ground 1 of the further amended application alleges the Tribunal has failed to consider the full integers of the applicant’s claims under the complementary protection provisions.
A failure by the Tribunal to consider all integers of an applicant’s claims is a failure to complete the exercise of jurisdiction embarked upon (see Htun (supra) at [42]).
The claims alleged to have been raised on the material before the Tribunal and not dealt with as part of the Tribunal’s complementary protection findings are comprised of three compound integers, namely the applicant would face harm:
a)From government and paramilitary groups;
b)In Sri Lanka generally; and
c)For reasons that may be unknown to him.
In SZSGA (supra), his Honour Robertson J stated at [56]-[57]:
56. There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.
57. As to SZFSK v Minister for Immigration [2013] FCCA 7, each case must depend on its own facts and on what the decision-maker’s reasoning in fact was. As I have said, in the present case, the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact which led to the conclusion that the Tribunal did not accept the appellant’s claim.
The first allegation relates to the alleged failure to consider the harm that would be faced by the applicant from government and paramilitary groups. The Tribunal made comprehensive findings on Conventions grounds in respect of these claims, in that it was not satisfied the applicant was wanted by the authorities or paramilitary groups (see Decision Record at [18]-[19] (CB 169-170)).
I agree with the Minister’s submissions that it is not uncommon and not an error for the Tribunal to refer to its earlier factual conclusions in respect of Convention grounds when addressing the complementary protection provisions. Having regard to this and the authority of SZSGA (supra), I am of the view this submission cannot be sustained.
In respect of the second aspect of the ground, the submission advanced by the applicant is that the Tribunal failed to consider the claim advanced by the applicant on his return to Sri Lanka at large, and only considered what would occur to the applicant on his arrival at the airport.
This submission cannot be sustained. Having regard to the Decision Record, this contention cannot be sustained. The Tribunal gave detailed consideration to what harm the applicant may face on his return to Sri Lanka, both at the airport and more generally (see Decision Record at [23]-[36]). The Tribunal’s findings were made having regard to the applicant’s ethnicity and political/imputed political opinion, country information, past events and its findings in respect of the applicant’s substantive claims. I further note the Court’s above finding, noting the authority of SZSGA (supra).
The final contention advanced by this ground, in effect, is that the Tribunal was required to consider a claim of harm from groups in Sri Lanka for reasons that are unknown to him, but failed to.
In respect of such a claim advanced under the provisions of s.36(2)(a) of the Migration Act, I agree with the submission advanced by the Minister that such a claim that the Tribunal was required to consider a claim of harm from groups for reasons unknown is unsustainable. His Honour Burchett J stated in Ram (supra) at 317:
In my opinion, there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group, which should always be kept firmly in mind. That concept flows through the separate elements of the definition. The well-founded fear of which it speaks is a fear of “being persecuted”. Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word “persecuted”, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is “membership of a particular social group”. If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon “membership of a particular social group”. The link between the key word “persecuted” and the phrase descriptive of the position of the refugee, “membership of a particular social group”, is provided by the words “for reasons of” — the membership of the social group must provide the reason. There is thus a common thread which links the expressions “persecuted”, “for reasons of”, and “membership of a particular social group”. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase “for reasons of”, and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group.
In respect of the complementary protection criterion, I also accept the Minister’s submission. The language of the statute requires there to be “substantial grounds for believing” that by reason of the applicant’s removal to Sri Lanka there is a real risk of significant harm to him. It cannot be said that substantial grounds for believing this could amount from what can be described as pure speculation. As was stated by Judge Nicholls in SZSJC v Minister for Immigration & Anor (supra) at [69]:
69. … The Tribunal is not required to consider the complementary protection criterion in the abstract. The Tribunal’s consideration must be with reference to the facts as presented. …
This submission, accordingly, cannot be sustained.
The ground as a whole raises no sustainable claim and should be dismissed.
Ground 2
This ground alleges a failure on the part of the Tribunal to apply the correct test in relation to the applicant’s claims under the complementary protection provisions of the Migration Act. The applicant contends the Tribunal failed to apply the real chance test.
The Tribunal’s relevant findings in respect of the applicant’s claims under the complementary protection provisions are found at [39]-[41] of the Tribunal’s Decision Record, where it stated:
39. The advisor submits the Applicant would satisfy the complementary protection criterion because there is a real risk he would be subjected to significant harm on return.
40. As noted, I am not satisfied as to the credibility of the Applicant’s claims that he would suffer serious harm on return to Sri Lanka for the reasons he has claimed. While I accept he would likely face arrest on charges of illegal departure, that he could well be placed in remand for a relatively brief period while awaiting a bail hearing, and that he would later be fined if found guilty I am not satisfied that this treatment could reasonably be seen as amounting either to serious harm in a Convention sense or significant harm in terms of Australia’s complementary protection arrangements. Nor am I satisfied that he would be exposed to significant harm for any other reason.
41. Having considered these circumstances I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm in terms of s.36(2)(aa) of the Act.
The Tribunal found it was not satisfied as to the credibility of the applicant’s claims he would suffer “serious harm on return … for the reasons he has claimed”. It then considered what would happen to the applicant on his return to Sri Lanka, but was not satisfied that any treatment the applicant would be subjected to would amount to either serious harm in a Convention sense or significant harm in the complementary protection sense.
As correctly submitted by the Minister at [44], the applicant’s submissions on this ground are unsustainable. The Tribunal clearly applied the language of the statute. The submission that the Tribunal misdirected itself by “focussing on the likely penalties as opposed to the real chance the applicant would be exposed to the penalties cannot be sustained (see [35] of the Decision Record (CB 174)).
Having regard to the paragraphs of the Tribunal’s Decision Record (reproduced above at [61] above), it can be seen that it did engage with the language and substance of the Migration Act in its consideration of the complementary protection provisions of the Migration Act in respect of the applicant’s claims.
The “WZAPN” Issue
This matter came before the Court for hearing on 6 June 2014. Judgment was reserved.
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). On 5 November 2014, the Minister’s solicitors were instructed to bring these matters to the Court’s attention. 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.
Failed Protection visa applicants of Tamil ethnicity returning to Sri Lanka voluntarily or by escort on temporary travel documents from a Western country will be questioned by the authorities and may be arrested and held on remand for a few days whilst waiting for a court appearance facing charges including possible breaches of the Immigration and Emigration Act 1949. Various country reports together with a Sydney Morning Herald article of 8-9 December 2012 indicate that people are detained possibly for 3 days after which they are bailed for a future court appearance. The hearing may levy a fine based on a law of general application relating to illegal departure from Sri Lanka. Country information indicates that there is some evidence demonstrating that the law is discriminatorily applied to people of Tamil ethnicity. As the entry point is usually Colombo, remand would be served in Negombo Prison which is cramped and unsanitary. The question arises as to whether being questioned, detained for up to 3 days and significant fines are of the type and seriousness of harm amounting to persecution as meant by s.91R of the Migration Act.
In WZAPN (supra), North J held that the application of s.91R did not permit a quantitative assessment of the nature of the harm required to be considered by that section. His Honour described the approach taken by the Reviewer at [18], where he states:
18. The reviewer accepted that there was a real chance that the applicant would be questioned periodically and probably detained for short periods when he failed to provide identification, but held that the frequency and length of the detention, and the nature of the treatment he would receive in detention, did not amount to serious harm within s 91R(2)(a), (b) or (c). The reviewer concluded that on this analysis, the nature of the detention was not sufficiently significant and thus did not constitute serious harm … In approaching the matter in this way, the reviewer made a qualitative assessment of the nature of the harm caused by the detention.
The argument was recorded by his Honour as:
20. The applicant contended in his original written submissions, and in oral submissions, that the reviewer wrongly applied a qualitative assessment to the nature of the harm. The applicant argued that s 91R(2)(a) is concerned with the threat, in the sense of a risk, of harm to life and liberty, whatever the nature of the harm. Whether there is a threat depends on an assessment of the likelihood of harm happening. But once that threat is established, s 91R(2)(a) operates so that the threat to life or liberty amounts to serious harm irrespective of the nature or extent of the potential harm to life or liberty. Thus, there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. Consequently, once the reviewer found that the applicant was at risk of detention, serious harm was established within the meaning of s 91R(2)(a) irrespective of the significance of the circumstances attending the detention.
That argument was accepted by his Honour at [30], [44] and [45] where his Honour stated:
30. The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.
…
44. In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.
45. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.
North J’s decision in WZAPN v Minister for Immigration and Border Protection (supra) has been considered in the following Full Federal Court decisions;
a)SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 per Robertson, Griffiths and Mortimer JJ;
b)BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 per Robertson, Griffith and Mortimer JJ; and
c)SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 per Robertson, Griffith and Mortimer JJ.
After a detailed consideration of the approach of the construction of s.91R and to the test in s.91R(1) and (2) their Honours found in SZTEQ at [58]-[60]:
58. Another aspect of the structure of s 91R(1), which we have touched on above, concerns the fact that it contains three separate and cumulative conditions for persecution to be established for the purposes of the Migration Act and the regulations, of which the requirement of serious harm is only one. We acknowledge that matters such as the length of detention, its frequency, purpose and character may also arise in determining whether the reason for the detention, which must be a Convention reason, is the essential and significant reason for the persecution (as required by s 91R(1)(a)) or involves systematic and discriminatory conduct (as required by s 91R(1)(c)). However, this does not mean that such matters may not also arise for consideration and evaluation in relation to the requirement of serious harm within s 91R(1)(b).
59. Unlike North J in WZAPN, we do not consider the absence of adjectival qualification in s 91R(2)(a) to be of significance, given the context of the provision as a whole. Rather, the absence of an adjective indicates that a threat to “liberty“ is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning. In this context, “liberty“ is a nuanced concept which takes its meaning from the context in which it appears, namely the requirement that the persecution involve serious harm, as is made clear in s 91R(1).
60. With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397:
… the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.
In the conclusion of SZTEQ at [154]-[155], their Honours state:
154. For the above reasons, and with great respect to North J, we do not consider that WZAPN correctly decided the construction of s 91R(2)(a). In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s 91R(1)(b) and Art 1A(2).
155. As the above analysis has sought to show, even if there was no error in his Honour’s examination of ss 91R(1) and (2) and the Convention concept of persecution by reference to “international human rights standards“ (see his Honour’s reasons at [43]), an issue which need not be determined in this appeal, contrary to his Honour’s reasoning, neither those standards, nor the jurisprudence and commentary about those standards in refugee decision-making supports the proposition that any deprivation of liberty must constitute serious harm for the purpose of the Convention.
On 17 June 2015 the High Court unanimously allowed an appeal from the Federal Court: see Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22. It also unanimously dismissed an appeal from the Federal Court which was WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82. The High Court held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself and without more, a threat to liberty within the meaning of s.91R(2)(a) of the Migration Act.
Conclusion
I have read the contents of the Court Book and, particularly, the Decision Record. On a fair reading thereof, no jurisdictional error on the part of the Tribunal is apparent. Accordingly, as none of the pleaded grounds in the application or submissions made by the applicant can be sustained, the application should be dismissed with costs awarded to the Minister.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Statutory Construction
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Remedies
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