SZTDU v Minister for Immigration and Border Protection

[2015] FCA 1425

FEDERAL COURT OF AUSTRALIA

SZTDU v Minister for Immigration and Border Protection [2015] FCA 1425

Citation:	SZTDU v Minister for Immigration and Border Protection [2015] FCA 1425
Appeal from:	SZTDU v Minister for Immigration & Anor [2015] FCCA 1615
Parties:	SZTDU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 791 of 2015
Judge:	DAVIES J
Date of judgment:	17 December 2015
Catchwords:	MIGRATION – Protection (Class XA) Visa – appeal from decision of Federal Circuit Court – no error of law – appeal dismissed
Date of hearing:	13 November 2015
Place:	Melbourne (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	32
Counsel for the Appellant:	P Reynolds
Solicitor for the Appellant:	Fragomen
Counsel for the First Respondent:	A Mitchelmore
Solicitor for the First Respondent:	DLA Piper
Counsel for the Second Respondent:	The Second Respondent entered a submitting appearance, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 791 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTDU
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	17 DECEMBER 2015
WHERE MADE:	MELBOURNE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 791 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZTDU
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE:	17 DECEMBER 2015
PLACE:	MELBOURNE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. The appellant has appealed the decision of the Federal Circuit Court (“FCC”) to dismiss the appellant’s application for judicial review of a decision of the second respondent (“the Tribunal”). The Tribunal affirmed a decision of the delegate of the first respondent not to grant the appellant’s application for a Protection (Class XA) visa.

   THE CLAIM FOR PROTECTION

2. The appellant is a citizen of Sri Lanka who entered Australia in 2012 as an Irregular Maritime Arrival. The appellant applied for a protection visa, claiming to fear persecution in Sri Lanka for reasons of imputed political opinion (and other reasons which are not presently relevant). He also made a complementary protection claim based on his illegal departure from Sri Lanka.

3. The appellant claimed that he had supported a local Tamil National Alliance (“TNA”) candidate at the parliamentary elections in April 2010 and this had led to persecution. He claimed that he had given his support to the TNA because he was a member of the Hindu Youth Committee (“HYC”) which the TNA had said it would support, if elected. He claimed that shortly after the election, he was harassed and assaulted by a group of men, who he believed were associated with the Tamil Makkal Viduthalai Pulikal (“TMVP”), the main political opponent to the TNA. He claimed that they told him that he must cease supporting the TNA immediately and that if he was known to be involved in the next election, they would shoot his family and all members of the HYC. He claimed that three days later, two men on motorbikes with weapons stopped outside his house and he “knew that this harassment … would continue” so he sent his wife and children to stay with his wife’s family and he went to his family’s home, where he did not have to venture into the public, and worked on the family farm for the next two years. He also claimed that in July 2010, his wife was threatened by four men who demanded to know his whereabouts, telling his wife that they would search for him. The appellant and his wife made the decision that he had to leave Sri Lanka. In 2010–2011 he applied for visas for Qatar and the UK but was unsuccessful. In May 2012 he left Sri Lanka with the assistance of a people smuggler. He claimed that he left “out of fear that [he] would be harmed again because of [his] associations with the TNA and the [HYC]”. He also claimed that after arriving in Australia, his wife informed him that a group of armed men had searched his family home looking for him and stated that they would continue to look for him and shoot him when they found him.

   THE TRIBUNAL’S DECISION

4. The Tribunal accepted the appellant’s claim that he had assisted the TNA in the Batticaloa District in the 2010 elections and the appellant’s explanation that he provided that assistance because of his involvement with the HYC. However, the Tribunal did not accept the appellant’s claim to have been harassed and assaulted because of his support for the TNA candidate at the 2010 elections, or that he had to live in hiding because of such harassment and intimidation. The Tribunal considered that his “evidence in its totality was unconvincing”. The Tribunal was not satisfied that the appellant was ever singled out for adverse treatment or harm as a TNA supporter or satisfied that he was ever adversely approached or that he had any political profile as a person suspected of being involved with, or a supporter of, the TNA.

5. The Tribunal also held that it was not satisfied that the appellant would, in the reasonably foreseeable future, face a real chance of serious harm in connection with his involvement with the TNA in 2010. The Tribunal noted on the evidence before it that the appellant had not been involved in any political activities other than during the four weeks in April 2010, that he had no ongoing interest in, or support for, any political movement in Sri Lanka, had not kept up to date with elections in Sri Lanka as he has no ongoing interest in politics and no particular political opinions he wished to express or support in the reasonably foreseeable future.

6. The Tribunal also considered whether the appellant would, in the reasonably foreseeable future, face a real chance of serious harm in connection with his involvement with the HYC. The Tribunal accepted that the appellant had continued to be involved with the HYC for around two years after April 2010 but was not satisfied that he was adversely approached, or targeted, during that time “for any reason, including in connection with [the HYC’s] or his claimed support for the TNA.” The Tribunal was not satisfied that the appellant’s involvement with the HYC imputed him in the past, or would impute him in the reasonably foreseeable future, with political opinions or involvement which gave rise to a real risk of serious harm in Sri Lanka and concluded, accordingly, that it was not satisfied that the appellant would, in the reasonably foreseeable future, face a real chance of serious harm in connection with his involvement with the HYC.

   THE FCC DECISION

7. There were five grounds of appeal before the FCC, all of which were rejected. Three of the grounds are relevant to the present appeal: namely, grounds two, three and five.

   Ground 2

8. Ground two before the FCC alleged that:

   The Tribunal engaged in jurisdictional error by finding, or in respect of its finding, that the [appellant] told the Tribunal that he had no ongoing interest in politics.

9. At [32] of the Tribunal’s reasons, the Tribunal had concluded that it was not satisfied that the appellant faces a real chance of serious harm in connection with any actual or imputed links to support for the TNA in the reasonably foreseeable future. Part of the reasoning included the following:

   While the Tribunal notes that independent sources identify targeted intimidation of TNA supporters and members at election times, suggesting that such members and supporters may face targeted intimidation in future elections, the [appellant] expressly told the Tribunal that he has no ongoing interest in politics and demonstrated being unaware of significant political events impacting Sri Lanka, such as the September 2012 elections. The Tribunal is not satisfied on the evidence before it that the [appellant] has any desire to express or support any political opinions or movements in the reasonably foreseeable future, or that he faces a real chance of future intimidation or any form of serious harm as a future supporter or member of the TNA.

   (italics added for emphasis)

10. Before the FCC, the appellant argued that the Tribunal committed jurisdictional error in finding that “the [appellant] expressly told the Tribunal that he has no ongoing interest in politics”. The appellant argued that on a fair reading the appellant did not disavow any interest in politics such that it could be said he would not assist the TNA in the future. Rather, it was his evidence that he stopped helping the TNA because of his fear, not his lack of interest and that he did have a continued interest in the TNA because of their support for the HYC. The relevant exchange was as follows:

    MEMBER:So have you retained any interest in the TNA or in the elections in Sri Lanka?

    INTERPRETER:        It’s only that one month during the election campaign I help them and after that I stop going and I not be, I didn’t involve with any of the activities after that, because of my fear.

    MEMBER:Well there’s involvement and there’s interest. I’m just trying to gauge what your interest is. A lot of Tamil people do take a very keen interest in what’s happening with the Sri Lankan election, especially after 2009.

    INTERPRETER:        See I helped them because they told me they will support our Society, so apart from that, individually, I didn’t have any interest.

11. The FCC rejected this ground, holding that the factual premise on which the claim for jurisdictional error was based was not made out as the appellant’s evidence was to the effect that he had no ongoing interest in politics.

    Ground 3

12. Ground three was an allegation that the Tribunal fell into legal error because it failed correctly to construe and consider a claim raised by the appellant’s representative in submissions made after the hearing (“the post-hearing submission”). That submission was put as follows:

    Although returnees are routinely detained and then released upon grant of bail, this is due simply to the inadequate facilities to detain the increasing volume of returnees. Given the recent increase in military spending by the Rajapaksa government it is reasonably foreseeable that governmental spending will be directed towards addressing the inadequacies of housing returnees given the perceived risk returnees may pose, should they be viewed as being associated with the LTTE, or other paramilitary organisations.

13. The FCC rejected the contention that the appellant had made a clear and articulated submission to the effect that, in the reasonably foreseeable future, there was a real chance that bail would not be granted as readily as in the past because the problem of the lack of holding facilities leading to the grant of bail would be addressed by increased government spending. The FCC held that the submission amounted to nothing more than speculation and supposition on the part of the appellant’s representative and, in the circumstances, the Tribunal was not required to consider that submission and the failure to deal with it did not establish jurisdictional error.

    Ground 5

14. Ground five concerned the alleged failure by the Tribunal properly to consider the relevant Sri Lankan legislation concerning illegal departures from Sri Lanka.

15. The appellant claimed that under the applicable Sri Lankan law applying to illegal departees, he faced a mandatory period of imprisonment of one to five years and a fine of 50,000 to 200,000 rupees. This claim was articulated in a detailed submission by his agent and supported by reference to the relevant Sri Lankan law (arts 34, 35 and 45(1)(b) of the Immigrants and Emigrants Act 2006 (Sri Lanka) (“Immigrants and Emigrants Act”)). It was claimed that this amounted to significant harm that enlivened Australia’s complementary protection obligations.

16. The Tribunal held at [49] that:

    The weight of country information also indicates [that] the [appellant] will be subject to a fine but not a custodial sentence for his illegal departure from Sri Lanka, and on that basis the Tribunal finds that the prospect of the [appellant] being detained for a prolonged period of time to be remote.

17. It was submitted that the Tribunal failed to deal with the claim put by the appellant that he faced mandatory imprisonment as a consequence of the application of the legislation, or alternatively failed to take into account a relevant consideration, that is the statute. The FCC found that the Tribunal had dealt with this claim in its findings at [49] which included that:

    The weight of country information also indicates [that] the [appellant] will be subject to a fine but not a custodial sentence for his illegal departure from Sri Lanka, and on that basis the Tribunal finds that the prospect of the [appellant] being detained for a prolonged period of time to be remote.

    THE APPEAL

18. The grounds of appeal are essentially the same as the above grounds that were advanced before the FCC.

    Ground 1

19. Ground one is expressed as follows:

    1.The court below erred by failing to find that the Tribunal had engaged in jurisdictional error in respect of its finding that the appellant had expressly told the Tribunal that he had no ongoing interest in politics. Contrary to the finding of the court below:

    a.the said finding was made in the absence of evidence. The appellant had not expressly told the Tribunal that he had no ongoing interest in politics;

    b.further and in the alternative, in making the said finding, the Tribunal failed to take into account the appellant’s evidence concerning the extent of his interest in politics in Sri Lanka.

20. This ground, with respect, is misconceived. The Tribunal did not make a finding of fact that the appellant did not have an ongoing interest in politics. Rather, the passage which the appellant challenged was a recitation of the evidence given by the appellant before the Tribunal. The appellant cavils that it was his evidence that he has no ongoing interest in politics, but even if it be accepted that the actual evidence was mischaracterised, that does not, of itself, establish jurisdictional error.

21. The real substance of the ground emerged during the course of argument, namely that the mischaracterisation of the evidence had led the Tribunal into jurisdictional error because, it was said, it was an integer of the appellant’s claim that he has an ongoing interest in the TNA to the extent that the TNA lends support for the HYC. The appellant was provided with the opportunity to submit an amended notice of appeal which raised the ground advanced in oral argument. This new ground is pleaded as ground 1A, which is considered next.

    Ground 1A

22. The Minister did not oppose a grant of leave to the appellant to rely upon the following new ground of appeal:

    1A. The court below erred by failing to find that the Tribunal had misconstrued, or had failed to consider, a component integer of the claim made by the appellant or raised by the material before it to the effect that:

    a.   he had an ongoing interest in Sri Lankan politics and the [TNA] to the extent to which it led to support for the [HYC];

    b.   he had a well-founded fear of persecution by virtue of an imputed political opinion by reason of his involvement in the HYC due to the support given or that might be given by the HYC to the [TNA] (whether or not the appellant supported the [TNA] himself).

23. Leave to amend should be given. However, there is no substance in the contention that the Tribunal misconstrued, or failed to consider, a component integer of the appellant’s claim. It was not part of the appellant’s claim that he had any ongoing interest in politics outside of his involvement with the HYC. At [20] the Tribunal dealt with the appellant’s involvement with the HYC, concluding that his involvement with the HYC had not imputed him in the past and would not impute him in the future with political opinions or involvement which gave rise to a real risk of harm in Sri Lanka. At [24] the Tribunal accepted that independent sources supported the claim that there has been some intimidation and adverse targeting of TNA supporters escalating around election time. The Tribunal then gave specific consideration to the appellant’s connection with the HYC as follows:

    Given the passage of time in the order of over three years since his involvement with the TNA the Tribunal asked the [appellant] why he thinks he would face any future risk of harm in connection with his brief and fairly low level involvement with the TNA in 2010. He responded that it may be due to his involvement with the HYC which was approached by the TMVP [Tamil Makkal Viduthalai Pulikal] for goods, and the HYC refused to give them what they asked for. He referred specifically to his refusal to give the TMVP stools they had asked to borrow as they had not returned ones lent to them earlier, and that this may have made him an adverse target also. When the Tribunal asked why he would be making decisions about who to lend HYC resources to, rather than the management of the HYC, he offered only that the Treasurer or Secretary referred the matter to him to decide. However his evidence on this point impressed the Tribunal as hesitant, vague, speculative and inconsistent with his continued involvement with the HYC for some two [years] after the 2010 elections, without any adverse approaches being made to him. The Tribunal is not satisfied that the [appellant] faces a real chance of serious harm in the reasonably foreseeable future in connection with political opinions imputed to him in connection with his involvement with the HYC.

    At [25] the Tribunal concluded:

    On balance, on the basis of all the evidence before it, while the Tribunal accepts that supporters, members and candidates of the TNA, and TNA property have, in the recent past, been adversely targeted for intimidation and harm around [election] times in what appears to be an effort by various entities to influence election outcomes, the Tribunal considers, as reasoned above, that the [appellant’s] involvement in TNA activities occurred at a very low level and have not given him any actual or imputed profile as a TNA supporter. The Tribunal notes the [appellant’s] representative’s written responses to seeming discrepancies put by the Tribunal to the [appellant] regarding information he was recorded as giving in respect of the claimed events of 15 April 2010, during his entry interview. Having considered that response the Tribunal has decided not to make any adverse findings in reliance on the apparent failure of the [appellant] to expressly mention, during his entry interview, that it was the TMVP that invaded his home on 15 April 2010. Notwithstanding this, the [appellant’s] evidence and his representative’s submissions do not overcome the totality of the cumulative concerns identified in the balance of the Tribunal’s considerations above, which leave the Tribunal unable to be satisfied that the events of 15 April 2010 in fact occurred. The Tribunal is not satisfied, on the totality of the evidence before it, that the [appellant] was ever singled out as a TNA supporter, or that his home was invaded on 15 April 2010 in connection with his involvement with the TNA, or that his home was subsequently adversely approached or monitored by anyone in connection with his TNA involvement as he has claimed. Nor is the Tribunal satisfied, on the evidence before it, that he was ever aversely approached or that he had any political profile linked to either the TNA or the LTTE in connection with his brief and low level involvement with the TNA for around one month in April 2010.

    Having found no imputed political profile in the past or in the reasonably foreseeable future in connection with the appellant’s involvement with the TNA or involvement with the HYC, the Tribunal at [32] concluded that he did not face a real chance of serious harm in connection with any actual or imputed links to or support for the TNA in the reasonably foreseeable future. The Tribunal dealt with whether the appellant would be at risk in the future, or be perceived as a TNA supporter in the future, by virtue of the HYC connection. The Tribunal concluded that it was not satisfied on the evidence before it that his involvement with the HYC imputed him in the past or would impute him in the reasonably foreseeable future with political opinions or involvement which gave rise to a real risk of serious harm in Sri Lanka. It was therefore unnecessary for the Tribunal then separately to consider whether his ongoing interest in the HYC might give rise to a well-founded fear due to the support given, or that might be given, by the HYC to the TNA.

    Ground 2

1. Ground two is expressed as follows:

   2.The court below erred by failing to find that the Tribunal had engaged in jurisdictional error in relation to its failure to deal with the appellant’s claim as to the increased likelihood that he would be refused bail upon his return to Sri Lanka. Contrary to the finding of the court below:

   a.the Tribunal was obliged to deal with the appellant’s claim in this regard (or component integer thereof), which the Tribunal failed to do;

   b.further and in the alternative, when finding that the appellant would not be refused bail upon his return, the Tribunal failed to take into account a relevant consideration (namely the appellant’s submission in this regard).

2. The appellant contended that the FCC had erroneously understood the ground as a contention that the Tribunal had not given conscious consideration to country information advanced by the appellant. Therefore, it was said, the FCC erroneously focussed on whether there was cogent country information that had been overlooked, rather than upon whether a claim (or component integer of a claim) by the appellant had been overlooked by the Tribunal. That submission cannot be accepted. At [71] the FCC articulated that the appellant had asserted that the Tribunal fell into legal error because it failed correctly to construe and consider a claim raised by the post-hearing submission. At [74] the FCC referred to the appellant’s argument that there was nothing in the Tribunal’s analysis to show that the Tribunal engaged with the submission that on return to Sri Lanka as a failed asylum seeker, in the reasonably foreseeable future there was a real chance that he would not be granted bail as readily as he would in the past because the problem leading to grants of bail (ie a lack of funding for holding facilities) would be addressed by increased government spending. At [75] the FCC referred to the appellant’s argument that the Tribunal’s analysis, in relation to the question of bail, was framed with reference to the “present” and not the reasonably foreseeable future. The FCC concluded that there was no clearly articulated claim as submitted by the appellant.

3. The FCC was correct to hold, for the reasons given, that the Tribunal did not fail to deal with a claim or integer of a claim made by the appellant. The post-hearing submission that “given the recent increase in military spending by the Rajapaksa government it is reasonably foreseeable that governmental spending will be directed towards addressing the inadequacies of housing returnees” was nothing more than speculation and hypothesis unsupported by country information. As the FCC stated at [85]:

   There is no evidence that any of this subsequent reasoning (beyond the reference to increased military spending) was derived from any source of country information. It was speculation, and supposition, on the part of the representative.

   And at [93]:

   the information about military spending, of itself, says nothing about the treatment that the [appellant] would likely face on return as a failed asylum seeker, or whether he would be given bail, or kept on remand.

4. The FCC was correct to so hold for the reasons given and no error is shown.

   Ground 3

5. Ground three is expressed as follows:

   3.The court below erred by failing to find that the Tribunal had, when finding that the prospect of the appellant being detained for a prolonged period of time was remote, engaged in jurisdictional error by failing to take into account a relevant consideration (namely, the penalty prescribed by article 45(1)(b) of the Immigrants and Emigrants Act for breaching articles 34 and 35 and the appellant’s submission in that regard).

6. The appellant submitted that the FCC incorrectly rejected this ground and that the Tribunal failed to deal with the appellant’s claim that he faced mandatory custody as a consequence of arts 34, 35 and 45(1)(b) of the Immigrants and Emigrants Act. Articles 34 and 35 make it an offence for a person to leave Sri Lanka illegally and art 45(1)(b) renders the person liable for prosecution. It was submitted that the Tribunal “simply ignored the appellant’s claim that articles 34, 35 and 45(1)(b) would be applied in their express terms to the appellant and stated that the prospect of a custodial sentence was remote based on unidentified [country] information”. I do not accept that submission.

7. In a prehearing submission by the appellant’s representative it was stated that violation of articles 34 and 35 “runs a mandatory fine and imprisonment”. At [49] the Tribunal found as follows:

   The weight of country information also indicates [that] the [appellant] will be subject to a fine but not a custodial sentence for his illegal departure from Sri Lanka, and on that basis the Tribunal finds that the prospect of the [appellant] being detained for a prolonged period of time to be remote.

8. That finding needs to be read in the context of the full submission made by the appellant’s representative. The representative had submitted that the Department of Foreign Affairs and Trade’s advice of 22 October 2012 was outdated. According to that advice, the provisions of the Immigrants and Emigrants Act were “seldom enforced” and up until 16 October 2012, no failed asylum seekers who had returned from Australia had been charged. It was submitted that more recent media reports from November 2012 showed “a disturbing pattern of interrogation, arrest and imprisonment”. Although there was no express reference to the provisions of the Immigrants and Emigrants Act in the Tribunal’s reasons, it is clear nonetheless that the Tribunal was aware that it was an element of the appellant’s claim that he would face mandatory imprisonment and did address the issue as to whether the appellant would be subject to a custodial sentence as the result of his illegal departure from Sri Lanka. The Tribunal found that prospect to be remote based upon the available country information. Furthermore, as the FCC also correctly observed, the relevant country information on which the Tribunal based its decision was referred to by the Tribunal at [35]–[45]. The contention by the appellant that the country information on which the Tribunal relied was “not responsive to the relevant issue” cannot be accepted. There was country information upon which the Tribunal could reach its conclusion. The weight given to that information by the Tribunal is not a matter of jurisdictional error. The FCC was correct in dismissing this ground.

   CONCLUSION

9. The appeal should be dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated:        17 December 2015