SZTFM v Minister for Immigration

Case •

[2015] FCCA 2039

•

31 July 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTFM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2039
Catchwords:
MIGRATION – Application for review of the decision of the Administrative Review Tribunal – whether the Tribunal failed to assess whether the applicant was at risk of serious or significant harm – whether the Tribunal applied the correct test – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 46A, 91R, 476
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22
Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260
Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334; (2002) 125 FCR 68
Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489; (2004) 208 ALR 229
VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
SZSFK v Minister for Immigration & Anor [2013] FCCA 7
Applicant: SZTFM
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 2017 of 2013
Judgment of: Judge Nicholls
Hearing date: 12 June 2014
Date of Last Submission: 12 June 2014
Delivered at: Sydney
Delivered on: 31 July 2015

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco
Solicitors for the Applicant: Michaela Byers
Counsel for the Respondents: Mr T Reilly
Solicitors for the Respondents: DLA Piper Australia

ORDERS

  1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

  2. The application made on 28 August 2013 and amended on 12 June 2014 is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $6200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2017 of 2013

SZTFM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 August 2013 and amended on 12 June 2014 seeking review of the decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (“the Tribunal”) of 24 July 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

  2. The evidence before the Court is:

    1)A bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).

    2)The affidavit of Michaela Byers, solicitor, made on 27 May 2014 annexing a transcript (“T”) of the Tribunal hearing with the applicant.

Background

  1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 5 June 2012 (CB 83). The Minister subsequently exercised his power pursuant to s.46A(2) of the Act to allow the applicant to apply for a protection visa (CB 2). This application was made on 10 September 2012 (CB 1 to CB 76). The delegate refused the grant of the visa on 22 October 2012 (CB 78 to CB 91).

  2. The applicant applied for review to the Tribunal on 27 November 2012 (CB 92 to CB 109). The Tribunal conducted a hearing with the applicant on 22 January 2013 (CB 122 to CB 123). His representative was present at the hearing. Following the hearing, his representative made written submissions on his behalf (CB 126 to CB 158).

  3. The applicant claimed to fear harm if he were to return to Sri Lanka because of his Tamil ethnicity and suspected involvement with the Liberation Tigers of Tamil Eelam (“LTTE”). The fear of harm was said to emanate from local police and security authorities, and the Singhalese community.

  4. The factual basis for the applicant’s claimed fear was said to be that he suffered “deprivation” of his basic human rights all his life because of his Tamil ethnicity. Specifically, his uncle had been an active LTTE member in 2003 to 2004, and had lived with the applicant’s family in 2010. After his uncle left, local police came to the applicant’s home on a number of occasions and asked him, and his father, about his uncle, and about the arrest and imprisonment of his father in the 1990s.

  5. The applicant claimed that his house was damaged in February 2012 when his family were visiting an aunt. This was said to have occurred when “people” in a “white van” came and damaged his family home.

  6. The applicant also claimed that in March 2012 local police told his mother that they would shoot the applicant and his father. He ceased living with his family after that. He was afraid because he had seen local police kill Tamils. Further, that after he left Sri Lanka and arrived in Australia, his mother told him that the authorities had come to his home looking for the applicant and his father. The applicant also feared he would be killed on return because he left the country “illegally” and because of the events that had occurred before he left.

  7. The Tribunal accepted that the applicant was a “Tamil Hindu male” ([111] at CB 183):

    “The Tribunal accepts as credible no more than that the applicant is a Tamil Hindu male who lived with his family in Udapu.  The Tribunal accepts as credible his claim that his father works as a fisherman there and that the applicant attended school and has worked as a painter and in a factory.  The Tribunal also accepts as credible the applicant’s claim that he left Sri Lanka illegally.  The Tribunal now turns to an assessment of the risk of the applicant suffering harm in Sri Lanka.”

  8. However, as the Tribunal made clear, it accepted “no more than” this of the applicant’s claims. For the remainder, the Tribunal found that the applicant was “not a witness of truth and the account of events on which his protection claims [were] based [was] false…” ([104] at CB 182).

  9. This conclusion was based on concerns about the applicant’s evidence given various inconsistencies in a written statement of claims, what he put to the delegate, what he said in evidence to the Tribunal, and as between these. Further, the Tribunal was not satisfied as to the applicant’s explanations for the inconsistencies (see [73] at CB 179 to [103] at CB 182). The Tribunal found he was not owed protection under the criteria at s.36(2) of the Act ([112] at CB 184 to [176] at CB 191).

Application Before the Court

  1. The grounds of the application to the Court, as amended, are in the following terms [ground three was subsequently not pressed]:

    “1. The Tribunal made legal errors in asking itself the wrong question about the outcome of a process instead of assessing the risk of harm to the applicant.

    PARTICULARS

    a. At [123] and [175] the Tribunal assessed whether the applicant would be given a jail sentence or a fine and failed to assess whether the applicant would be at risk of suffering serious or significant harm during the process.

    2. The Tribunal made a legal error in failing to consider the risk of harm to the applicant after being convicted of illegal departure from Sri Lanka and returning to his nominated address.

    …

    4. The Tribunal made a legal error in applying the wrong test.

    PARTICULARS

    a. At [172] and [173], the Tribunal explicitly conflated the tests under section 36(2)(a) and 36(2)(aa) of the Migration Act - making the findings under complementary protection for the same reasons as those made under the Refugee Convention;

    b. At [174], the Tribunal's reasoning is confined to whether the harm could flow as a result of his Refugee convention-related nexus - namely ‘because he is a young Tamil male from Udapu and will return there as a filed asylum seeker’;

    c. At [174], the Tribunal found there is no credible evidence that Sri Lankan authorities or anyone else in Sri Lanka ‘wish’ to harm the applicant, drawing into the test under complementary protection the element of motivation on the part of those who would persecute as required under the Refugee convention; and

    d. At [175], the Tribunal has failed to apply the ‘real chance’ test to the findings there stated, preferring a balance of probabilities formulation.

  2. Following the hearing of this matter the Federal Court handed down judgment in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. What was relevantly found in that case concerned s.91R(2)(a) of the Act. This may have been relevant to the applicant’s grounds before this Court. The matter was adjourned awaiting the outcome of a special leave application to the High Court by the Minister, and subsequent hearing. The High Court handed down judgment in this matter on 17 June 2015 (Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22). The High Court’s judgment, allowing the appeal, does not assist the applicant.

Consideration

  1. I understood the applicant’s grounds one and two to arise from the applicant’s claim before the Tribunal that he would face harm as a returning Tamil who had left Sri Lanka illegally. Ground one is focussed on what would likely happen at the airport. Ground two on what would likely happen after his arrival at, and passing through, the airport.

  2. Ground one asserts that the Tribunal made a legal error in asking itself the wrong question. The applicant submitted that the Tribunal was focussed on the outcome of the process the applicant would face on return at the airport, rather than assessing the risk of harm to the applicant during the process.

  3. The particulars direct attention to [123] (at CB 185) and [175] (at CB 191) of the Tribunal’s decision record. The applicant argued that the Tribunal assessed whether the applicant would be given a gaol sentence, or a fine (“the outcome”), rather than assessing the risk of harm during the process.

  4. In submissions, that argument was further explained as the Tribunal having failed to consider the risk of harm while the applicant was held in remand. This was explained as follows. The Tribunal had before it country information that returnees to Sri Lanka would be interviewed for the purpose of establishing identity, and that those who left Sri Lanka illegally would be brought before a magistrate “as soon as possible”. A brief detention in remand, awaiting an appearance before a magistrate, was possible, depending on the day of arrival.

  5. The applicant contends that a claim to fear harm, as a result of what would happen immediately upon arrival, that is, during the process of remand, was raised in the representative’s submission to the Tribunal (see “item iii” of the applicant’s claims at CB 128.7).

  6. The applicant’s argument, that the Tribunal did not consider this claim, must be rejected on any plain reading of the Tribunal’s decision. As set out above, the Tribunal had before it country information specifically focussed on the issue of the risk of harm for returning failed asylum seekers, who had left Sri Lanka illegally (see at [51] at CB 174 to [70] at CB 178). This section of the reference to country information includes a specific heading “[p]rocedures on arrival at the airport in Colombo” (CB 174.2).

  7. In its analysis the Tribunal addressed the issue of “[t]he risk of returning to Sri Lanka as a failed asylum seeker and after leaving the country illegally” (CB 184.7). As a part of this analysis the Tribunal made specific reference to the country information which it had earlier set out in its decision record and stated ([118] at CB 184 to [119] at CB 185):

    “[118] Further, the country information mentioned earlier in this decision indicates to the Tribunal that on arrival in Sri Lanka, returnees will be interviewed at the airport to establish identity and as soon as possible brought before a magistrate in relation to departing the country illegally. 

    [119] Depending on the day on which the returnee arrives at the airport in Colombo, that person may be briefly detained in remand before being brought to the court.  In the Tribunal's view, country information indicates that for departing the country illegally, the returnee will be granted bail and will, eventually, receive a fine.”

    [Emphasis added.]

  8. The Tribunal found on this point ([120] at CB 185):

    “The Tribunal notes that according to country information Tamils are treated the same way as anybody else in this process.  Further, there is no reliable substantiated evidence that Tamils suffer harm or maltreatment in this process.”

    [Emphasis added.]

  9. The Tribunal concluded as follows ([124] at CB 185):

    “Accordingly, the Tribunal considers that the risk of a Tamil suffering harm in Sri Lanka as a returnee after seeking asylum abroad and leaving the country illegally (and suffering harm solely due to those factors) is remote.”

  10. While the Tribunal also considered the “likely outcome” of any such process ([123] at CB 185), it was clear that in its relevant findings, in relation to the applicable country information, it considered the situation both as it would likely be during the process immediately on arrival, and subsequently.

  11. Importantly, in its decision record the Tribunal specifically addressed, at some considerable length, the representative’s submissions, which the applicant now says contained his claim relevant to ground one ([126] at CB 185 to [171] at CB 191).

  12. As part of this consideration, the Tribunal stated ([162] – [164] at CB 190):

    “[162] Notwithstanding these claims made by the representative, the fact remains that according to country information mentioned earlier in this decision there remain no reliable reports of Tamils who are returned to Sri Lanka after seeking asylum in Australia (or anywhere else) being harmed in the process of being interviewed at the airport, being held briefly on remand before being brought before a magistrate to be granted bail (or at any time afterwards). 

    [163] Were it the case that on arrival in Sri Lanka Tamil returnees who sought asylum in Australia were questioned and maltreated about with whom they associated in Australia for the reasons given by the representative, the Tribunal would expect that to be reported given the wide coverage of human rights violations in Sri Lanka. 

    [164] Again the representative claims that because the applicant is a young Tamil man he will be "screened" by the authorities for involvement in anti-government activities because of adverse political opinions imputed to him (again because of his ethnicity).  The Tribunal has dealt with those arguments above and finds that the risk of the applicant suffering harm because he is a Tamil including because he will return there as a failed asylum seeker from Australia who left the country illegally is remote.”

    [Emphasis added.]

  13. The Tribunal then set out relevant conclusions as against each of the criteria for a protection visa at s.36(2) of the Act ([170] and [175] at CB 191):

    “[170] For the reasons given above, the Tribunal finds that the risk of the applicant suffering serious harm because he is Tamil, because of his age, gender, place of origin in Sri Lanka, because he will return there as a failed asylum seeker from Australia is remote.  The risk of the applicant being imprisoned for his illegal departure is remote and the risk of the applicant suffering serious harm through the possibility of being briefly kept in remand before being brought before a magistrate is also remote. 

    …

    [175] While there is a possibility the applicant may be held briefly in remand before being brought before a magistrate as regards his illegal departure, the Tribunal considers that this does not amount to a real risk of the applicant suffering significant harm. The Tribunal finds the risk of the applicant being given a jail sentence for his illegal departure is remote and the imposition of a fine of the range mentioned in country information earlier in this decision does not amount to significant harm as that term is defined in the Act.”

    [Emphasis added.]

  14. Given the Tribunal’s plain language used in its analysis, and clear findings, it is difficult to see how the applicant conceived the ground as raising an arguable case, let alone that it revealed jurisdictional error.

  15. Although not pleaded, it also appeared that the applicant’s submissions before the Court complained that it was not open to the Tribunal to reach the relevant conclusions that it reached as against each of the criteria for the protection visa.

  16. I agree with the Minister’s submission that the Tribunal acknowledged that the applicant would be held briefly on remand, but found that this would not rise to the level of “serious” harm or “significant” harm (Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 per Hill J at 269 and 271, Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334; (2002) 125 FCR 68 at [3] and [56], Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489; (2004) 208 ALR 229 per Sundberg at [23] ‑ [24]; VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 at [24] and Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 at [50] – [53]).

  17. The applicant’s submissions also complained that the Tribunal focussed on the short (“briefly”) length of time that the applicant would likely be held on remand, rather than asking whether he would be held for a longer period.

  18. What is immediately apparent with this submission is that it contradicts the general complaint raised by ground one, and the submissions otherwise put in explanation of it, that the Tribunal did not focus at all on the “process” on arrival in Sri Lanka, including while he was held on remand. I did not understand this particular submission to be put as an alternate argument. The contradiction remained unexplained.

  19. In any event, at its highest, this particular complaint appears to cavil with the Tribunal’s finding that the applicant would be “held briefly” on return. While the applicant’s representatives before the Tribunal made claims to “human rights abuses by the Sri Lankan authorities during detention and interrogation” (CB 128.7), and that this was put in the context of what would likely occur “on arrival” (CB 128.6), there is no claim that “on arrival” the applicant would be held for any particular period.

  20. The Tribunal, therefore, dealt with this part of the claim, as made. Its finding that the detention would be brief was reasonably open to it on what was before it.

  21. The applicant’s submissions in relation to ground one also asserted that the Tribunal applied the wrong test, namely a balance of probabilities test, rather than a real chance test. It is to be immediately noted that this is not what is pleaded in ground one. It may have formed a part of ground four, but this was not made clear.

  22. In any event, it appears, as best as it could be understood, that the assertion arises because the Tribunal is said to have “favoured a balance of probabilities test” because it considered the “likely” time spent on remand as opposed to the “real chance” that the time on remand could be longer.

  23. If that was the intended focus of the argument, it is dealt with specifically above. If this was meant as a part of a broader and general assertion of legal error, for the reasons set out below, there is nothing in the circumstances presented to indicate that the Tribunal adopted a balance of probabilities test.

  24. The Minister referred the Court to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 for direction in how this Court should approach the disposition of this complaint. In that case, the High Court considered the question of whether the relevant decision maker in that case had applied a balance of probabilities test.

  1. In the current case, the Tribunal identified the correct test, as it applied to the criteria at s.36(2)(a) ([13] at CB 167) and s.36(2)(aa) of the Act ([19] at CB 168, see also the reference there to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505).

  2. There is nothing in the language used elsewhere by the Tribunal in its decision record to suggest it misunderstood the correct test, or that it applied the wrong test.  The applicant referred to phrases used by the Tribunal such as “may be held in remand” or “the most likely outcome” to argue that this revealed that the Tribunal applied the wrong test. When these are read in context, that is fairly, and in light of Wu Shan Liang (at [50] – [51]), they are reflective of the Tribunal’s evaluation of the evidence and country information, but otherwise within the context of the correct test. In all, ground one does not succeed.

  3. Ground two asserts that the Tribunal failed to consider the risk of harm to the applicant after being convicted of illegal departure from Sri Lanka and returning to his “nominated address”. Before the Court this was described as the “inversion” of the error asserted in ground one.

  4. To make good this contention the applicant pointed to the submissions made by his representative to the Tribunal. In particular, that the Sri Lankan authorities conducted “ongoing screening” of Tamils, amongst other things, suspected of LTTE association (CB 128) and that in this context the relevant law enforcement agencies acted with impunity and a lack of accountability (CB 129).

  5. One difficulty now for the applicant is that while his representatives made submissions generally about “human rights abuses” in Sri Lanka, there was nothing put, beyond the facts of his Tamil ethnicity, certain specific past events and having departed Sri Lanka illegally, to assert that the applicant would face “ongoing” harm after his return to his home.

  6. As set out above, the Tribunal rejected the greater part of the applicant’s factual assertions as to past events. Once the Tribunal rejected all these matters, on credibility grounds reasonably open to it, the only outstanding matter was the claimed fear of harm on the basis of his Tamil ethnicity as a returnee who left Sri Lanka illegally. The Tribunal specifically dealt with this (see [117] at CB 184 to [171] at CB 191). Ground two is not made out.

  7. The final ground asserts that the Tribunal made a legal error by applying the wrong test. To the extent that the applicant’s submission in relation to ground one may be understood as extending to ground four, the submissions do not reveal jurisdictional error for the reasons set out above.

  8. The specific focus in ground four appeared to be that the Tribunal confused the test relevant to the criterion at s.36(2)(a) of the Act, in relation to the Refugees Convention, with the test at s.36(2)(aa) of the Act, in relation to complementary protection.

  9. The applicant directed attention to [172] to [176] (at CB 191) of the Tribunal’s decision record, which appears under the heading of “Complementary protection”. The argument was that the Tribunal’s error of “conflating” the two separate tests can be seen where, in assessing complementary protection, it referred to, and relied on, findings of fact made in the context of the Refugees Convention assessment.

  10. The assertion that the Tribunal fell into error simply because it relied on findings of fact set out earlier in its decision record in the consideration of the Refugees Convention, must be rejected (SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 “SZSHK”).

  11. In the current case, the applicant made submissions in which he stated he relied on SZSFK v Minister for Immigration & Anor [2013] FCCA 7 at [97] per Judge Driver, and submitted that he drew on that reasoning and asked that it be applied to the current case.

  12. The answer to the applicant’s ground, in part, derives from what was said in SZSHK at [35]:

    “As to SZFSK v Minister for Immigration [2013] FCCA 7, relied on by the appellant at [20] of his written submissions, as Robertson J said in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57], each case must depend on its own facts and on what the decision-maker’s reasoning in fact was. In the present case, the Assessor specifically addressed the complementary protection claim by reference to the language of the statute and made findings of fact which led to the conclusion that she did not accept the appellant’s claim.”

  13. In SZSFK, in my respectful view, what underpinned His Honour’s concern was that the decision maker made findings of fact when considering the Refugees Convention criteria and subsequently relied on the complementary protection assessments, which were findings that invoked the Refugees Convention. Plainly, such findings cannot be applied to the complementary protection criterion.

  14. However, the applicant has not satisfactorily pointed to any such finding in the current case which was then subsequently relied on in the complementary protection assessment. The findings of fact to which the Tribunal referred were the findings leading to, and including, the adverse finding as to the applicant’s credit.

  15. That the Tribunal understood the importance of the distinction between the tests for the two criteria at s.36(2) of the Act is made clear when under the complementary protection assessment, it made specific and separate findings in relation to the matter of whether, if the applicant were to be held on remand, this would amount to “significant” harm ([175] at CB 191). That the Tribunal relied on country information in this context “mentioned” earlier does not reveal it confused the two tests.

  16. As set out above, the applicant also sought to focus on some of the language used by the Tribunal to argue that the wrong test was applied. At [175], the Tribunal said (at CB 191):

    “While there is a possibility the applicant may be held briefly in remand before being brought before a magistrate as regards his illegal departure, the Tribunal considers that this does not amount to a real risk of the applicant suffering significant harm. The Tribunal finds the risk of the applicant being given a jail sentence for his illegal departure is remote and the imposition of a fine of the range mentioned in country information earlier in this decision does not amount to significant harm as that term is defined in the Act.”

    [Emphasis added.]

  17. The word “possibility” here in my view derives from, and is a reference to, the country information on which the Tribunal relied. That information was to the effect that all returnees who left illegally would be interviewed on return and brought before a magistrate. The “possibility” of a brief detention on remand prior to coming before the magistrate depended on the day of arrival (that is, whether it was a weekend or a public holiday) (see [53] at CB 174 and [62] at CB 176 to CB 177).

  18. The Tribunal reflected this in its analysis of the assessment of risk of a returnee, who had left illegally (see [119] at CB 184 to CB 185). That is, the Tribunal noted that a returnee “may” be detained depending on the time of arrival, before being brought before a magistrate.

  19. At [175] (at CB 191), the reference to “possibility” is a reflection of the factual situation as found by the Tribunal on return. It is not reflective of some test other than the real chance test relevant to the complementary protection criterion. In all ground four is not made out.

Conclusion

  1. None of the grounds of the application, as amended, and expanded in written submissions, and before the Court, are made out. The application should be dismissed. I will make an order accordingly.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 July 2015

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