SZUEE v Minister for Immigration
[2015] FCCA 1674
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUEE v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1674 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – whether ‘failed asylum seekers’ are a particular social group – whether the Tribunal failed to make inquiries – whether the Tribunal failed to take into account relevant material – consideration of WZAPN issue – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(2A), 91R |
| Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1996) 190 CLR 225 BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 VOAO & Anor v Minister for Immigrationand Multicultural and Indigenous Affairs [2004] FMCA 441 |
| Applicant: | SZUEE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 936 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 4 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Selliah of Rasan Sealliah & Asosciates |
| Solicitors for the First Respondent: | Ms N Blake of Clayton Utz |
| 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 SYDNEY |
SYG 936 of 2014
| SZUEE |
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 7 April 2014 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1315351, a decision of Tribunal Member A. Mullin dated 14 March 2014, 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 7 July 2014 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 4 December 2014;
b)Written submissions on 26 November 2014; and
c)Further written submissions on 5 February 2015.
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 is a citizen of Sri Lanka, who was born on 21 September 1977 (CB 1, 88). He arrived on Cocos Island as an Irregular Maritime Arrival on 10 August 2012 (CB 89). On 18 December 2012, he applied for a Protection visa (CB 1-56, including the applicant’s statement at CB 27-32). On 13 September 2013, the Delegate refused the application (CB 195). She did so on the basis that Australia did not owe protection obligations to the applicant pursuant s.36(2)(a) of the Migration Act obligations of complementary protection pursuant to s.36(2)(aa) of the Act.
On 6 December 2013, the applicant appeared at the Tribunal hearing with his registered migration agent (CB 130-131). The Applicant’s representative provided a written submission to the Tribunal and certain country information (CB 115-123, 278-304 and additional documents provided at CB 133-137). On 14 March 2014, the Tribunal affirmed the Delegate's decision. The applicant commenced the current proceedings on 7 April 2014.
Applicant’s claims
The applicant claimed to fear persecution from the Sri Lankan Army (the “SLA”) because he was suspected of having an association with the Liberation Tigers of Tamil Eelam (the “LTTE”). In particular the applicant made the following claims:
a)He was a fisherman from Kurunagar village, in the Jaffna District of Sri Lanka. After completing seven years of education he worked as a fisherman and also worked as a construction labourer and as a land mine remover (CB 143 at [12]);
b)His family consists of his wife and three children. His family, his mother and his seven siblings are currently residing in Jaffna and his father passed away in 2006 from natural causes (CB 143 at [12]);
c)In 1987, he and his family were displaced when the Indian peacekeeping forces arrived. His family was displaced again in 1990 and at that time he and his brother went to live with his grandmother. In 1996, he and his family were displaced for a third time and from then lived under Sri Lankan government control (CB 143 at [13]);
d)In 1997, he was detained by the SLA and severely beaten. As a consequence he was forced to confess that he was a LTTE member. After nine months he was released following a court hearing (CB 143 at [14]);
e)Since his release in 1997, and until 2001, he was banned by the Sri Lankan Navy from fishing in the ocean. He was also frequently questioned and beaten by SLA officers (CB 143 at [15]-[16]);
f)In 2007, the applicant was again banned by the Sri Lankan Navy from fishing, and was beaten and threatened by the military and accused of being a LTTE member. In 2008, his permit to fish in the ocean was approved and he returned to fishing until 2012 (CB 143 at [16]);
g)On 15 April 2012, the applicant was taken away by the SLA and was questioned at gunpoint about his knowledge of the whereabouts of the LTTE leader, Prabakharan. He claimed to be frightened after this incident and that people had been executed in public. As his passport had expired, he left it in Sri Lanka (CB 144 at [17).
At his interview with the delegate on 23 August 2013, the applicant repeated his claims and stated that in April 2012 he was arrested and asked about his involvement with the LTTE, the incident in 1997 and the current whereabouts of the LTTE leader (CB 144 at [21]).
At the hearing before the Tribunal on 6 December 2013, the applicant expanded on his detention and questioning in April 2012. The Tribunal put to the applicant that it did not accept as true that he was detained and questioned in April 2012 given the LTTE leader, Prabakharan was killed in May 2009. The applicant confirmed that the only times he was detained and beaten were in 1997, 2007 and April 2012. The applicant expanded on his work in Sri Lanka and gave details of the businesses he had been operating (CB 144 at [22]).
Tribunal’s decision
The Tribunal accepted parts of the applicant's account. However, the Tribunal had concerns with parts of his claims which it found adversely affected his overall credibility. The Tribunal (CB 149-150 at [31]):
a)Noted that a major aspect of the applicant's claims rested on his claim to have been detained by the authorities and questioned at gunpoint in April 2012. However, the Tribunal did not accept as reasonable that the applicant would have been questioned about the whereabouts of Prabakharan and whether he was still alive. It noted that it was well documented that the LTTE leader and his family were killed by the SLA in the closing days of the civil war in May 2009. It did not accept that anyone would be questioning the applicant, or anyone else, on this topic in 2012. The Tribunal found that the applicant had fabricated this claim so as to enhance his claims for a protection visa;
b)Found that the applicant was not just an employed fisherman who was repeatedly beaten and denied a licence to fish at sea, as claimed in his original application. The Tribunal noted that the applicant gave evidence at the hearing that he had operated businesses in the fishing industry since 1997 and that, whilst his opportunity to go to sea had been affected by the war, this was something that affected all fishermen. It noted that since 2010 local fishermen in Jaffna had undisturbed access to fishing areas, including an ability to fish at night. The Tribunal did not accept that the applicant was beaten on a daily basis or that he had been denied rights to earn an income. It accepted that he was detained in a general roundup in 2007 and was beaten at that time. However, the Tribunal did not accept that there were any ongoing consequences from that incident; and
c)Did not accept as reasonable that the applicant would remain of interest to the authorities due to the 1997 incident resulting in his arrest and detention. It noted that the case against him was dismissed by a court in Colombo in 1998 and that this was sixteen years ago. The applicant had operated businesses, obtained work licences from the government, obtained a passport through a government agency in 2002 and had married and had children. The Tribunal noted that the civil war ended in May 2009 and that those who were of interest to the authorities had been arrested and detained at that time. The applicant had lived in a government controlled area since 1996, and at the end of the civil war, he had worked for an NGO and had then returned to Jaffna. He was issued with a fishing licence by a government agency in August 2009 and another by the Navy in 2010. The Tribunal found that these matters indicated that the applicant was of no adverse interest to the authorities in Sri Lanka.
The Tribunal concluded that the applicant was not a credible witness and that he had fabricated aspects of his claims and exaggerated others to enhance his claims for a protection visa (CB 150 at [32]).
The Tribunal did not accept that the applicant had a profile that would cause him any ongoing concern or adverse interest from the authorities on his return to Sri Lanka. It did not accept that the authorities would impute any adverse political opinion to him or that the applicant would be suspected of being a LTTE sympathiser or member (CB 150 at [33]).
The Tribunal accepted that up until the war ended in May 2009, and for a period beyond, Tamils in Sri Lanka were at risk of serious harm from the authorities. However, it was not reasonably satisfied that Sri Lankans who are Tamils now face serious harm because of their ethnicity, or that factors including being from the north or east of Sri Lanka, or being young and male, put them at greater risk of such harm (CB 150-151 at [34]-[37]).
The Tribunal accepted that on return to Sri Lanka the applicant would be doing so as a failed asylum seeker and one from a western country. It accepted that the applicant would be questioned by the authorities on his return. It accepted that this questioning would include being asked about the arrangements of his departure and the smugglers involved. The Tribunal further accepted that the applicant may be arrested and held on remand for a few days whilst awaiting a court appearance and that the conditions in Negombo prison are cramped and probably unsanitary. The Tribunal accepted that the applicant may be fined between 50,000 and 100,000 rupees (CB 151 at [38]). However, the Tribunal concluded that:
a)In the present circumstances the motivation of the Sri Lankan authorities in arresting, detaining and fining people is not for reasons of a Convention ground but the implementation of a law of general application relating to illegal departure from Sri Lanka (CB 152 at [40]);
b)There was not a particular social group of failed asylum seekers, since such a group is necessarily defined in these circumstances by the harm they fear. It further noted that prosecution in such circumstances is a legitimate action by the authorities and that there was no evidence that the law, any period of detention or fine imposed, or the condition of detention, was being applied in a discriminatory manner (CB 152 at [40]);
c)Being questioned, detained for a few days and fined was not serious harm amounting to persecution within the meaning of s.91R(1)(b) of the Migration Act (CB 152 at [41]); and
d)The applicant did not have a profile that would cause him to be of interest to the authorities for any matter. It did not accept that his detention in 1997 and 1998, and then release, was of any adverse consequence for him (CB 152 at [42]).
The Tribunal was satisfied that the applicant did not have a well-founded fear of persecution for reasons of a Convention ground.
For the same reasons, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act. It did not accept that the applicant had such a profile. It did not accept that he would be of any adverse interest to the authorities in Sri Lanka. Nor did it accept that being arrested on return to Sri Lanka, or held on remand, amounted to significant harm within the meaning of s.36(2A) of the Migration Act (CB 152-153 at [46]-[49]).
Current Proceedings
The further amended application pleads the following grounds:
1. The Second Respondent committed jurisdiction error by finding that ‘failed asylum seekers are not a particular social group.
Particulars
1.1 The Second Respondent found that ‘failed asylum seekers is not a particular social group at paragraph [40] of the decision.
1.2 ‘Failed asylum seekers’ are a particular social group as the group is identifiable by a common characteristic that is not their fear of harm, and that distinguishes them from society at large.
2. The Second Respondent engaged in legal error by applying the wrong test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth).
Particulars
2.1 The Second Respondent made a finding, at paragraph [41] of the decision, that being detained for a few days and fines was not of “such seriousness” to be serious harm.
2.2 The Second Respondent underwent a qualitative assessment of the nature and degree of the harm experience and this failed to apply the test of serious harm pursuant to s 91R92)(a): WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA 947 at [30] and [45].
3. The Second Respondent committed jurisdictional error by failing to make inquiries.
Particulars
3.1 The Second Respondent dismissed a central claim at paragraph [31] of the decision because it was assumed that the LTTE leader’s death was “well documented” and no one would question the applicant about this.
3.2 The Second Respondent failed to make simple inquiries about whether a universal belief regarding the LTTE leader’s death exists. Simple inquires would have revealed that a vast number believe the LTTE leader is still alive.
4. The Second Respondent engaged in legal error by holding that “[t]here is no evidence that the law, any period of detention and fine, or the condition of detention, are being applied in a discriminatory manner” where such evidence was before the Second Respondent.
Particulars:
4.1 The Second Respondent made the above conclusion at paragraph [40] of the decision.
4.2 The above conclusion was critical step in its ultimate conclusion because it justified the dismissal of one of the applicant’s main claims, namely, fear of harm for belonging to the particular social group of failed asylum seekers.
4.3 Page 11 of the delegate’s decision, at page 100 of the court book, provides evidence that the airport screening process and laws are discriminatorily applied to Tamils and those with “connections to the Tamil causes”.
4.3 Hence, there was no evidence to make the conclusion at paragraph [40].
5. The Second Respondent engaged in legal error by failing to take into account relevant considerations when concluding that “[t]here is no evidence that the law, any period of detention and fine, or the condition of detention, are being applied in a discriminatory manner.”
Particulars:
5.1 The Second Respondent made the above conclusion at paragraph [40] of the decision.
5.2 The above conclusion was critical step in its ultimate conclusion because it justified the dismissal of one of the applicant’s main claims.
5.3 Similar to SZSBX v Minister for Immigration [2013] FCCA 1127, any evidence that contradicts the above conclusion is relevant and must be taken into account to avoid jurisdictional error.
5.4 Page 11 of the delegate’s decision, at page 100 of the court book, provides contradictory evidence that the airport screening process and laws are discriminatorily applied to Tamils and those with “connections to the Tamil causes”.
5.5 The absolute wording of the Tribunal’s conclusion at paragraph [40] (“There is no evidence…” (emphasis ours)) indicates that no consideration was made to the evidence in the delegate’s decision.
Applicant’s Submissions
Ground One
The Tribunal committed jurisdictional error by finding that ‘failed asylum seekers’ are not a particular social group.
In Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Gleeson CJ, Gummow and Kirby JJ said at [36]:
36. Therefore, the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”.
Justice McHugh in Applicant S (supra) summarised the issue in broadly similar terms at [69] where he stated:
69. To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle.
At [40] of the Tribunal’s Decision Record (CB 152), it found that ‘failed asylum seekers’ is not a particular social group and stated:
40. As set out under Relevant Law, one or a combination of the Convention grounds must be the essential and significant motivation for the claimed harm or persecution. In the present circumstances the motivation of the Sri Lankan authorities in arresting, detaining for a few days and fining people is not for a Convention ground but the implementation of a law of general application relating to illegal departure from Sri Lanka. I have considered whether there is any element of membership of a particular social group and cannot identify one. I do not accept there is a particular social group of failed asylum seekers as such a group is necessarily in these circumstances defined by the harm they fear. Further, prosecution in such circumstances is a legitimate action by the authorities. There is no evidence that the law, any period of detention and fine, of the conditions of detention, are being applied in a discriminatory manner.
The Tribunal erred by stating that the common attribute of ‘failed asylum seekers’ is indistinguishable from harm their fear. In Sri Lanka, ‘failed asylum seekers’ share a common attribute in their migration history. This is a common attribute that creates a ‘social presence’ as it, inter alia, indicates (1) that the individual was one who either has or claims to have been subjected to persecution in the past, (2) attempted to leave Sri Lanka, their cultural and historical home, for an indefinite and possibly permanent period, and (3) have lived overseas for a period of time whilst their refugee status was assessed. These factors, individually and cumulatively, differentiate the individuals from Sri Lankan society at large. The common characteristic exists separately from their fear of harm upon return and separately from any policy that targets the group.
It is accepted that many people seek asylum because they commonly fear harm from their home country. However, there also exist individuals who do not subjectively fear harm but utilise the refugee process as a means of migrating to a personally preferred country. Hence, due to the existence of this second class, it is impossible to regard ‘failed asylum seekers’ as defined by their shared harm. Rather, they are defined by their migration history.
In Sri Lanka there exists means of verifying the immigration status and history of individuals. This was implicitly accepted by the Tribunal at [38] of the Decision Record where it stated:
I accept that on return to Sri Lanka the applicant would be doing so as a failed asylum seeker and that this is from a western country. I accept he would be questioned by the authorities on return. I accept this questioning would include being asked about the arrangements and smugglers involved.
Hence it is evident that failed asylum seekers are distinguishable from society at large. This indicates that “failed asylum seekers” meet the definition of a particular social group.
Ground Two
The Tribunal has applied the wrong test pursuant to s.91R(2)(a) of the Migration Act.
The statutory formula present in s.91R(2) of the Migration Act reads as follows:
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(Emphasis added)
As stated by his Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [30] and [45]:
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.
…
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.
The factual foundation for the claim is established at paragraph [38] and [41] of the Tribunal’s Decision Record. There the Tribunal held:
38. I accept that on return to Sri Lanka the applicant would be doing so as a failed asylum seeker and that this is from a western country. I accept he would be questioned by the authorities on return. I accept this questioning would include being asked about the arrangements and smugglers involved. It is reasonable to accept he would be arrested and held on remand for a few days while awaiting a court appearance. I accept that the conditions in Negombo prison are cramped and probably unsanitary. I am aware of reports including the Sydney Morning Herald article above (and also see country information referred to in the delegate’s decision) indicating people are detained possibly for 3 days at which time they are bailed for a future court appearance. I accept he will be fined between 50,000 and 100,000 rupees ($880 and $1760). DFAT REPORT: 1478, 28 February 2013 indicates that he will be arrested and charged with illegally departing from Sri Lanka and as detailed in that report, the penalty is different that what would be applied if he had attempted the crime.
…
41. I have also considered whether being questioned, detained for a few days and fines is of the type of and seriousness of harm as could be considered as serious harm amounting to persecution as meant by section 91R(1)(b) of the Act. I find that it is not of such seriousness.
Clearly, at [41] of the Decision Record, the Tribunal has engaged in a qualitative assessment of the circumstances of the applicant’s detention whilst on remand rather than assessing whether the process of being questioned and investigated at the airport and remanded into custody (however brief) would amount to a deprivation of the applicant’s liberty. That is, they assessed whether the “detention for a few days” was of sufficient “seriousness”. In doing so the Tribunal fell into jurisdictional error of the type described by His Honour North J in WZAPN (supra).
Ground Three
The Tribunal committed jurisdictional error by failing to make inquiries.
In Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25] the plurality of the High Court said:
25. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
More recently, in Minister for Immigration v SZRTF [2013] FCA 1377, Katzmann J said at [40]:
40. ... [I]t seems to me that for a fact to be critical it must at least be decision of, or crucially important to an anterior issue which provided ‘a sufficient link” to the outcome of the review…
The factual foundation for the claim is established at paragraph [31] of the Tribunal’s Decision Record (CB 149-150). There the Tribunal held:
31. … Significantly, he claims to have been questioned about the whereabouts of Prabakharan, the Tamil LTTE, leader and where he was and whether he was still alive. He was asked this over and over. I do not accept as reasonable to believe that he would have been questioned about this. It is well documented that Prabakharan and his family were killed by the Sri Lankan army in the closing days of the civil war in May 2009. I do not accept that anyone would be questioning him, or anyone else, on this topic in 2012. I find he has fabricated this questioning and detention so as to enhance his claims for a protection visa.”
The death of Prabakharan is not as absolute and “well documented” as the member assumed. Countless websites (which can be ascertained through a simple Google search of ‘Prabakharan still alive’) evidence that many believe, and believed in 2012, that Prabakharan was still alive, and that the body recovered in 2009 was not Prabakharan’s. Given the facts, it was obvious to inquire into whether navy officers might believe Prabakharan was alive. By failing to make the simple inquiry as to whether Prabakharan was universally believed to be dead caused the Tribunal to discredit the applicant’s central claim.
Ground Four (No Evidence Ground)
The Tribunal engaged in legal error by holding that “[t]here is no evidence that the law, any period of detention and fine, or the condition of detention, are being applied in a discriminatory manner” where such evidence was before the Tribunal.
It has long been established that the making of a finding without any supportive evidence may constitute an error of law. In Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 Mason CJ said at [355] (footnotes omitted):
The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.
Further, and in the context of reviewing a Tribunal decision, the Full Court of the Federal Court in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 77 ALD 402 said at [19] (footnotes omitted):
19. … If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error. If the decision of the Tribunal was `Wednesbury' unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error.
(footnotes omitted)
The applicant submits that the case of VOAO & Anor v Minister for Immigration [2004] FMCA 441 provides a factual scenario that is analogous to the present case. In that case, Walter FM made the following statements:
The No Evidence Ground
8. In its decision, the RRT referred to and reproduced a lengthy extract from the International Religious Freedom Report 2002 … (“the 2002 Report”). …
9. The extract from the 2002 Report appears under the heading “Independent Information” on pages 76 to 80 of the Court Book. …
10. The extract from the 2002 Report included the following passage (at page 80 of the Court Book):
In March 2002, members of the country's Jewish Cultural Society reported that they had heard calls for violence against Jews issued in Russian and Kyrgyz from a loud speaker at a Mosque in central Bishkek. According to the Israeli Embassy in Almaty, the Government is investigating.
I shall refer to this passage as “the first passage”.
11. The RRT's decision is brief…
12. Almost immediately after the recitation of the extracts from the 2002 Report, and under the heading "Findings and Reasons" appears the following:
The applicant claims fear of persecution for reason of religion, being a Jew in Kyrghyzstan. The applicant also claims that he will be persecuted because of an investigation over the fate of the organisation in which he was a manager.
RELIGION
The Tribunal notes the country information above and remarks on the absence of any mention of either an event or an attitude that would support the applicant's claim that he was and would be persecuted as a Jew in Kyrghyzstan. [emphasis added]
13. Prima facie, the sentence commencing “The Tribunal notes...” quoted in paragraph 12 above (which I shall refer to as "the second passage"), appears to be inconsistent -- and obviously so -- with the first passage. Such discordance is clearly apparent from the plain and ordinary meaning of the words contained in the two passages (and, in particular, when regard is had to the words upon which I have placed emphasis in the second passage).
…
21. … [The applicants] say, quite simply, that the second passage is wrong and, to the extent that it may constitute a finding, there is no evidence for it. It is not illogical because it is not reasoned. It is simply wrong, and I agree with them.
The above decision was upheld by the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50. The Court stated at [11]:
11. It was for the Tribunal to evaluate the significance of this statement, considering it in the context of the whole report and the other evidence. The outcome of that evaluation would be a finding of fact and probably invulnerable to judicial review. However, the Tribunal did not undertake any such evaluation. In finding an absence of any mention of an event that would support the male respondent’s claim, the Tribunal ignored this statement.
The Tribunal, in this matter, at [40] of the Decision Record stated that “[t]here is no evidence that the law, and period of detention and fine, or the condition of detention, are being applied in a discriminatory matter.”
However, at [13] of the decision of the delegate (CB 100) the delegate stated:
The screening process is the similar for all persons returning to Sri Lanka voluntarily or by escort on temporary travel documents, regardless of ethnicity. However according to an adjunct professor of political science at Temple University conducting research on Sri Lanka, the government may have stationed former Tamil Tigers who have sided with the government and are working with the Sri Lankan security forces, at the airport to assist the screening process. The professor noted that;
“if you are Tamil and have any connection to the Tamil causes, it is very likely that you would be screened at the airport and taken into police custody. It is very hard for anyone that has a connection to the Tamil Tigers to go back to Sri Lanka”.
The Temple University adjunct professor noted that people who left the country illegally and have no documentation upon their return are selected for screening but would be “safe” if they are not connected to any government-opposed activities.”
(Emphasis added)
This country information indicates that there is some evidence demonstrating that the law in question is discriminatorily applied to people of the Tamil race and people who hold a political opinion (actual or imputed) in favour of ‘the Tamil causes’. It is not a law of general application, uniformly applied to all those who have violated it.
The Tribunal accepted that this country information was before it at [10] of the Decision Record: “[The applicant] has provided a copy of the delegate’s decision with his application for review.” (CB 143)
Hence the Tribunal made a finding that there was “no evidence…” to support the claim that the Immigrants and Emigrants Act 1949 is applied in a discriminatory manner, when such evidence did exist and was before the Tribunal. Therefore, and similar the VOAO (FCAFC) (supra), the Tribunal made a finding for which there was no supportive evidence.
Further, this finding related to a critical issue as it was the basis for rejecting the applicant’s claim that he would be harmed for belonging to a particular social group of ‘failed asylum seekers’.
As stated by the Full Federal Court in VOAO (FCAFC) (supra), it was for the Tribunal to evaluate the significance of this country information, considering it in the context of the whole report and the other evidence. The failure to do so and the consequent making of a finding for which there was no supportive evidence amount to jurisdictional error.
Ground Five (Failure to take into account relevant material)
The Tribunal engaged in legal error by failing to take into account relevant considerations when concluding that “[t]here is no evidence that the law, any period of detention and fine, or the condition of detention, are being applied in a discriminatory manner.”
As stated by his Honour Judge Manousaridis in SZSBX & Anor v Minister for Immigration & Anor [2013] FCCA 1127 at [54]-[56] and [67]:
54. Thus, in my opinion, these authorities show that the relevant legal principle that must be considered when it is claimed the Tribunal committed jurisdictional error by failing to consider evidence before it when conducting a review under the Act is this: such failure will amount to jurisdictional error if, as a consequence, it cannot fairly be said the Tribunal’s decision is a decision that was made after considering the evidence and arguments advanced by the applicant.
55. So stated, this principle does not identify the circumstances in which it would be appropriate to conclude the Tribunal’s failure to consider evidence will render its decision one that cannot fairly be said to have been made after considering the evidence and arguments before it. Here, the overriding consideration in determining such circumstances is the fact that a court exercising judicial review jurisdiction cannot consider the merits of the application before the Tribunal. In particular, the court cannot consider whether the Tribunal would have made a different decision had it considered the evidence; that was and remains a matter for the Tribunal. All a court can assess is whether the evidence the Tribunal failed to consider is such that, had the Tribunal considered it, the Tribunal could have made a different decision. If the evidence the Tribunal overlooks is of this nature, then the evidence may be described “material” evidence.
56. Thus, in my opinion, the circumstance that will render a Tribunal’s decision a decision that cannot fairly be said to have been made after considering the evidence and arguments before it will be the materiality of the evidence the Tribunal failed to consider. In other words, a Tribunal’s failure to consider evidence will result in jurisdictional error if the evidence the Tribunal failed to consider is such that it could have materially affected the Tribunal’s decision had the Tribunal considered it.
…
67. I now turn to the decision of Minister for Immigration and Citizenship v SZRKT. In that case, Robertson J upheld the conclusion of the Federal Magistrate’s Court, although not that Court’s reasoning, that the failure by the Tribunal to consider an item of evidence – a document which purported to be an academic transcript of the applicant’s results at a university, and in particular, his having studied Persian – constituted jurisdictional error.”
The Tribunal accepted that certain material, namely the delegate’s decision, was before it at [10] of the Decision Record: “[The applicant] has provided a copy of the delegate’s decision with his application for review.”
At p.13 of the decision of the delegate (CB 100) the delegate stated:
The screening process is the similar for all persons returning to Sri Lanka voluntarily or by escort on temporary travel documents, regardless of ethnicity. However according to an adjunct professor of political science at Temple University conducting research on Sri Lanka, the government may have stationed former Tamil Tigers who have sided with the government and are working with the Sri Lankan security forces, at the airport to assist the screening process. The professor noted that;
“if you are Tamil and have any connection to the Tamil causes, it is very likely that you would be screened at the airport and taken into police custody. It is very hard for anyone that has a connection to the Tamil Tigers to go back to Sri Lanka”.
The Temple University adjunct professor noted that people who left the country illegally and have no documentation upon their return are selected for screening but would be “safe” if they are not connected to any government-opposed activities.
(Emphasis added)
This country information indicates that there is some evidence demonstrating that the law in question is discriminatorily applied to people of the Tamil race and people who hold a political opinion (actual or imputed) in favour of ‘the Tamil causes’.
However, the Tribunal stated at [40] of the Decision Record that “[t]here is no evidence that the law, and period of detention and fine, or the condition of detention, are being applied in a discriminatory matter.”
From the definitive language in [40] finding, that there is “no evidence…” we can infer that the Tribunal has overlooked or failed to take into account any evidence contrary to the finding. The contents of [13] of the delegate’s decision contain such contrary evidence, and hence constitute relevant material that the Tribunal failed to take into account.
This finding relates to a critical issue as it was the basis for rejecting the applicant’s claim that he would be harmed for belonging to a particular social group of ‘failed asylum seekers’. Any material which contradicts or opposes the finding is relevant as the Tribunal has the duty to consider and weigh this information before making its finding, especially when the finding is critical. Hence, it cannot fairly be said the Tribunal’s decision is a decision that was made after considering the evidence and arguments advanced by the applicant.
Minister’s Submissions
In his application for review filed 7 April 2014, the applicant identifies a single ground of review and indicates that more grounds will be raised. Now, at this last stage in the proceedings, the applicant seeks leave to file an amended application for Review setting out three new grounds for review. The Minister notes that at the directions hearing on 10 June 2014, at which the applicant's representative attended, orders were made requiring, inter alia, the applicant to file and serve any amended application by 10 September 2014. On 25 November 2014, the applicant served the amended application and the applicant's written submissions. Given the long delay, the applicant ought to offer an explanation for the breach which, if accepted by the Court, would permit the filing of the amended application.
The grounds raised by the applicant in his application for review as filed are set out verbatim below:
1. The decision of the Refugee Review Tribunal was made in error. People in Jaffna talks that the LTTE leader Pirabakaran [Prabakharan] is alive. I see a Sri Lankan Navy is asking me about LTTE leader Pirabakaran's details. Refugee Review Tribunal think leader Pirabakaran is dead.
2. I will provide more grounds once I find a lawyer.
The applicant's second ground of review is not a proper ground of review and must fail.
By his first ground of review, the applicant essentially seeks impermissible merits review. To the extent the applicant is contending that the finding made by the Tribunal that Prabakharan was no longer alive was not reasonably open on the material before it, that contention must fail. As recorded at [22] of the Tribunal's Decision Record (CB 144), it is well documented that Prabakharan was killed in May 2009 and that all of his family were shot.
Should the applicant be granted leave to file his amended application, the Minister addresses the new grounds raised in that amended application below.
Ground 1
By this ground, the applicant asserts that the Tribunal erred in finding that failed asylum seekers are not a particular social group. In his written submissions, the applicant essentially submits that the Tribunal erred in finding that the common attribute of “failed asylum seekers” is indistinguishable from the harm they fear because in Sri Lanka:
a)Failed asylum seeks share a common attribute in their migration history which creates a social presence and differentiates them from Sri Lankan society at large. It is submitted that this common characteristic exists separately from their fear of harm upon return and separately from any policy that targets the group; and
b)There exists a means of verifying the immigration status and history of individuals which indicates that failed asylum seekers meet the definition of a particular social group (see [22]-[24] above (applicant’s submissions)).
With respect, the Minister submits that the applicant has mischaracterised the reasoning process of the Tribunal whereby it concluded, at [40] of the Decision Record, that in the circumstances of this matter, failed asylum seekers were not a particular social group.
As appreciated by the Tribunal, the persecutory conduct of itself cannot define a particular social group. In Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1996) 190 CLR 225, McHugh J at 263 noted that to define a social group by the persecutory conduct would:
In substance, permit the particular social group ground to take on the character of a safety net. It was impermissibly weakened, if it did not destroy, the cumulative requirements of fear of persecution, "for reasons of" and membership of a particular social group in the definition of refugee. It would also make the other 4 grounds of persecutions superfluous.
At [40] of the Tribunal's Decision Record, the Tribunal sets out its reasoning as follows:
a)One or a combination of the Convention grounds must be the essential and significant motivation for the claimed harm or persecution;
b)In the present circumstances, the motivation of the Sri Lankan authorities in arresting, detaining for a few days and fining people is not for reasons of a Convention ground but the implementation of a law of general application relating to illegal departure from Sri Lanka;
c)There is not a particular social group of failed asylum seekers as "such a group is necessarily in these circumstances defined by the harm they fear" (Minister’s emphasis); and
d)Prosecution in such circumstances is a legitimate action by the authorities. There is no evidence that the law, any period of detention and fine, or the condition of detention, are being applied in a discriminatory manner.
It is submitted that no error is disclosed in the reasoning of the Tribunal as set out above. The persecution claimed to be feared by the applicant, as a member of the group of failed asylum seekers, is to be harmed on return to Sri Lanka for breaching the Immigrants and Emigrants Act 1949. Within the context of that claimed fear, the Tribunal was correct to find, as it did, that it was the alleged persecutory conduct which defined the particular social group of failed asylum seekers.
Ground 2
By ground 2 of the amended application, the applicant asserts that the Tribunal engaged in legal error by applying the wrong test pursuant to s.91R(2)(a) of the Migration Act in light of the decision of North J in WZAPN (supra).
The applicant submits that the error arises because the Tribunal – having found that the applicant was at risk of detention upon his return to Sri Lanka - engaged in a qualitative assessment of that detention rather than assessing whether the process of being remanded constituted a deprivation of the applicant’s liberty in accordance with the requirements of s.91R(2)(a) of the Migration Act.
In respect of this ground, the Minister submits that WZAPN was wrongly decided. The decision in WZAPN is currently the subject of an application for special leave to appeal to the High Court by the Minister. In addition, the Minister submits that WZAPN is not applicable in the present case for the reasons set out below.
At [40] of the Decision Record the Tribunal found that in the present circumstances, the motivation of the Sri Lankan authorities in arresting, detaining for a few days and fining people was not for reasons of a Convention ground but the implementation of a law of general application relating to illegal departures from Sri Lanka. It concluded that no element of membership of a particular social group could be identified such that prosecutions in such circumstances are legitimate actions by the authorities. The Tribunal further found that there was no evidence that the law, any period of detention and fine, or the condition of detention, were being applied in a discriminatory manner.
Having regard to these findings – and irrespective of whether the detention itself could be said to constitute “serious harm” for the purposes of s.91R(b) (which is denied) – the applicant’s claim did not meet the requirements of s.91R(1)(a) or s.91R(1)(c) of the Migration Act and was properly rejected by the Tribunal. The requirements of s.91R(1) are cumulative and not in the alternative. All of them must be met in order for a conclusion to be properly drawn that the applicant was persecuted in accordance with the terms of the Migration Act and the Convention. In light of this, there was an independent and alternative basis for rejecting the applicant's claims that did not require consideration of the issues raised by s.91R(1)(b): MZZUO v Minister for Immigration and Border Protection [2014] FCA 1267 at [10] - [17]; SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252.
It is respectfully submitted that in accordance with that the applicant’s detention (if any) – being conduct undertaken pursuant to a law of general application - would not constitute persecution for the purposes of the Migration Act: Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293. This is consistent with other decisions of the Federal Court in applying WZAPN to facts similar to the current case: SZSXY v Minister for Immigration and Border Protection [2014] FCA 1183; SZSPT v Minister for Immigration [2014] FCCA 1388; SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252; SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245.
It should be noted that for the purposes of complementary protection pursuant to s.36(2)(aa), the Tribunal correctly concluded that detention of the sort discussed by the Tribunal at [38] and [49] of the Decision Record, did not constitute “significant harm”.
Ground 3
By this ground, the applicant asserts that the Tribunal committed jurisdictional error in failing to make (essentially) further inquiries as to whether Prabakharan “was universally believed to be dead” (see [35] above (applicant’s submissions)).
The Minister submits that the Tribunal was entitled to find that Prabakharan and his family were killed by the SLA in the closing days of the civil war in May 2009. That finding was reasonably open to the Tribunal on the material before it. There was no requirement for it to make further enquiries to satisfy itself of this finding. It is not to the point that there may have been other material available which suggested that Prabakharan was alive. Tellingly, that material was not put before the Tribunal by the applicant, nor is it before this court. In any event, it is trite law that provided a finding is reasonably open to the Tribunal on the material before it, no error will arise.
The Minister submits that Ground 3 is cogently without merit.
Further submissions
These submissions respond to the further written submissions filed by the applicant on 5 February 2015. These submissions address the two grounds outlined by the applicant in an email to the Minister’s and his Honour's Associate on 22 January 2015. Although his Honour made orders in chambers on 30 January 2014 granting leave for the applicant to file a further amended application to reflect the additional grounds, that application has not been filed.
Consideration
Both of the applicant's grounds of review centre around the following passage at [40] of the Tribunal's Decision Record (CB 152):
[T]here is no evidence that the law, any period of detention and fine, or the condition of detention, are being applied in a discriminatory manner.
(Emphasis added)
The applicant's additional grounds challenge the above finding by the Tribunal (see [42] and [51] above (applicant’s submissions)) allege that the Tribunal's finding at [40] reflects legal error because it was made when “no evidence” was before it or, alternatively, the Tribunal failed to consider “relevant material” before it. The evidence referred to in both grounds is the opinion of a Professor from Temple University (the “Temple University Information”) cited by the Delegate (see CB 100). Notably, a copy of the delegate's decision was provided to the Tribunal by the applicant - this fact is not in dispute (CB 143 at [10]).
The Minister observes at the outset that the applicant's two grounds are founded on a fundamental misreading of the Tribunal's reasons. The applicant's “no evidence ground” and “failure to take into account relevant material ground” are built on a literal interpretation of the words “no evidence”, as they appear at [40] of the Decision Record and do not engage with the balance of the Tribunal's reasons. This much can be inferred from [54] above (applicant’s submissions) where the Tribunal's reasons at [40] are referred to as “the definitive language”.
The Minister submits that the words “no evidence” reflect the Tribunal's finding that there was no evidence to support the applicant's claim that “the law” in question - Emigration and Immigration Act 1949 - would be “discriminatorily” applied against him upon his return to Sri Lanka. Neither the applicant's submissions nor the Temple University Information contradicts the central tenet of what the Tribunal found. The plain fact is, the Temple University Information does not refer to the law and its application.
An exhaustive array of country information was considered by the Tribunal. It is set out at [30] of the Decision Record (CB 146-149) and it included:
a)Troubled Waters: Corruption and Human Trafficking in post war Sr Lanka, Tamilaussie.com;
b)World Report 2011: Sri Lanka, Human Rights Watch. Reports on "Events of 2010";
c)Asylum denied, a penalty awaits at home;
d)DFAT Report, 1478, 28 February 2013;
e)UNHCR Eligibility Guidelines Sri Lanka: 2009, 2010, 2011, 2012, and
f)Upper Tribunal (Immigration and Asylum Chamber) United Kingdom country guidance decision in GH v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [013] UKUT 319 (IAC).
None of that information contradicts the Tribunal's finding at [40] of the Decision Record and indeed the applicant does not suggest so.
It is also noteworthy that the Tribunal in its opening words to [30] of the Decision Record clearly referenced and incorporated the country information relied on in the delegate's decision (which included the Temple University Information).
The Minister submits that, only after considering the totality of the above information did the Tribunal find the applicant not to be at risk of harm upon his return to Sri Lanka. These matters are further addressed below, but in reverse order to the numbered grounds.
(Ground 5) Failure to consider relevant material ground
The applicant contends by this ground that the Tribunal failed to consider relevant material, i.e., the Temple University Information. This ground must fail. It is incorrect. The Tribunal had express regard to this material at [10] of the Decision Record (CB 143). This much is acknowledged by the applicant. At [44] and [50] above (applicant’s submissions), the applicant states, “the Second Respondent accepted that certain material, namely the delegate's decision, was before it at paragraph [10] of its decision….” Furthermore, and as alluded to in [81] above, at [30] of the Decision Record the Tribunal expressly said that the country information is “as detailed in the delegate's decision” before stating that “[it had] also considered the following”, being the other country information (see [81] above). This clearly indicates that the Tribunal was cognisant of the information which the applicant now seeks to argue was not considered.
In the face of the above matters, the Minister submits that the only inference that can be drawn is that the Temple University Information was considered by the Tribunal.
(Ground 4) No evidence ground
As both of the applicant's additional grounds rely on the same piece of material - the Temple University Information - once it is established that the Tribunal did consider that information, the applicant's "No evidence ground" is undermined. This is because if the Temple University Information was considered, the finding made by the Tribunal at [40] must accordingly be construed as a “negative finding” - a situation which is separate and distinct from a no evidence at law ground.
The distinction between a negative finding and a no evidence finding was explored by Justice Perram in Sunchen v Commissioner of Taxation (2010) 264 ALR 447. His Honour held at [47] that “there is a difference between a finding of a positive fact for which there is no evidence, and a finding that something is not the case where there is some evidence to show that it is in fact so”.Significantly, whilst the former is an error of law, the latter is an error of fact only. The Minister submits that this case raises the latter scenario and, therefore, if the Court were to intervene, it would be required to intrude impermissibly into the merits of the administrative decision of the Tribunal: see N258A/00A v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478 per Katz J at [27].
Considering the above, a no evidence ground cannot be available where the finding that is being challenge is in substance a negative one. The Minister submits that this case concerns such a finding, and therefore, this ground must fail.
Was the "negative finding" rationally possible?
Once it is determined that the finding made by the Tribunal at [40] was a “negative finding” it is then necessary to consider whether that finding was a reasonable one in the context of the evidence and material before the Tribunal. Justice Perram in Sunchen (supra) explained at [45] that “if there exists evidence which contradicts that negative finding… it remains rationally possible for the decision-maker to arrive at the same conclusion simply by rejecting that evidence”.
The Minister submits that the negative finding was “rationally possible” for the following reasons:
a)At [30] of the Decision Record, the Tribunal records its detailed consideration of all of the material before it. Only after the Tribunal had synthesised all of this information did it arrive at its conclusion at [40]. In particular, the Decision Record discloses that the Tribunal expressly considered the position of those who return to Sri Lanka and who are Tamil (see for example [37] of the Decision Record). At [42] of the Decision Record the Tribunal held that the applicant was not a person who “has a level of profile that would cause him to be considered” in that way. It is submitted that was a rational conclusion open to the Tribunal on the basis of the evidence before it (see generally Decision Record at [30]-[42]); and
b)Furthermore, it is well settled law that the weight that is to be accorded to evidence is a matter for the Tribunal and is not amenable to judicial review: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[14] per Gray, Tamberlin and Lander JJ and Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Minister submits that the Tribunal either rejected or placed less weight on the Temple University Information when considered against the other information before it (see [30] of the Decision Record).
Conclusion
For the above reasons, the Minister submits that the two additional grounds pleaded by way of the applicant's further amended application must fail. The Minister submits that the application be dismissed with costs.
Consideration
Ground 1
This ground alleges the Tribunal has erred by finding the “failed asylum seekers” are not a particular social group. The Tribunal stated at [40] of its Decision Record:
40. As set out under Relevant Law, one or a combination of the Convention grounds must be the essential and significant motivation for the claimed harm or persecution. In the present circumstances the motivation of the Sri Lankan authorities in arresting, detaining for a few days and fining people is not for a Convention ground but the implementation of a law of general application relating to illegal departure from Sri Lanka. I have considered whether there is any element of membership of a particular social group and cannot identify one. I do not accept there is a particular social group of failed asylum seekers as such a group is necessarily in these circumstances defined by the harm they fear. Further, prosecution in such circumstances is a legitimate action by the authorities. There is no evidence that the law, any period of detention and fine, of the conditions of detention, are being applied in a discriminatory manner.
McHugh J in Applicant A (supra) stated at 261:
The concept of persecution can have no place in defining the term “a particular social group”. While decisions that have sought to apply the ejusdem generis principle to discern the meaning of “particular social group” are problematic because it is difficult to identify a genus common to “race, religion, nationality … [and] political opinion”,123 one factor common to these four categories is that the fact or fear of persecution plays no role in understanding their content. If the drafters did not intend persecution to be relevant in defining those four categories, it would seem likely that they did not intend persecution to play any part in defining what is a “particular social group”. Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the “particular social group” ground to take on the character of a safety net. It would impermissibly weaken, if it did not destroy, the cumulative requirements of “fear of persecution”, “for reasons of” and “membership of a particular social group” in the definition of “refugee”. It would also effectively make the other four grounds of persecution superfluous.
That being so, persons who seek to fall within the definition of “refugee” in Art 1A(2) of the Convention must demonstrate that the form of persecution that they fear is not a defining characteristic of the “particular social group” of which they claim membership.124 If it were otherwise, Art 1A(2) would be rendered illogical and nonsensical. It would mean that persons who had a well-founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution.
Having regard to the submissions advanced by both parties, I prefer the Minister’s. The Tribunal reasoned as follows at [40] of the Decision Record:
a)One, or a combination, of the Convention grounds, must be the essential and significant motivation for the claimed harm and persecution;
b)In respect of the applicant’s claim, the motivation of the Sri Lankan authorities in arresting, detaining for a few days and fining people who have departed Sri Lanka illegally is not for reasons of a Convention ground or grounds, but is as a result of the implementation of a law of general application;
c)There is not a particular social group of “failed asylum seekers” as “such a group is necessarily in these circumstances defined by the harm they fear”;
d)Prosecution in circumstances of illegal departure from Sri Lanka is a legitimate action by Sri Lankan authorities and there is no evidence that the law, any period of detention, any fine, or the conditions of detention are being applied in a discriminatory manner.
Having regard to the Tribunal’s findings, I am satisfied there is no error demonstrated therein. The claimed persecution is harm on return to Sri Lanka for breaching a law of general application, in this case the Immigrants and Emigrants Act 1949. In respect of the context of that claimed fear, the Tribunal was correct to find, as it did, that it was the claimed persecutory conduct that defined the particular social group claimed of “failed asylum seekers”.
This ground cannot be sustained and should be dismissed.
Ground 2 – The “WZAPN” Issue
On 3 September 2014, the Federal Court of Australia delivered judgment in the matter WZAPN (supra) per North J.
On 1 October 2014, the Minister filed in the High Court of Australia an Application for Special Leave to Appeal from the judgment of North J in WZAPN (supra).
Failed Protection visa applicants of Tamil ethnicity returning to Sri Lanka voluntarily or by escort on temporary travel documents from a Western country will be questioned by the authorities and may be arrested and held on remand for a few days whilst waiting for a court appearance facing charges including possible breaches of the Immigration and Emigration Act 1949. Various country reports together with a Sydney Morning Herald article of 8-9 December 2012 indicate that people are detained possibly for 3 days after which they are bailed for a future court appearance. The hearing may levy a fine based on a law of general application relating to illegal departure from Sri Lanka. Country information indicates that there is some evidence demonstrating that the law is discriminatorily applied to people of Tamil ethnicity. As the entry point is usually Colombo, remand would be served in Negombo Prison which is cramped and unsanitary. The question arises as to whether being questioned, detained for up to 3 days and significant fines are of the type and seriousness of harm amounting to persecution as meant by s.91R of the Migration Act.
In WZAPN (supra), North J held that the application of s.91R did not permit a quantitative assessment of the nature of the harm required to be considered by that section. His Honour described the approach taken by the Reviewer at [18], where he states:
18. The reviewer accepted that there was a real chance that the applicant would be questioned periodically and probably detained for short periods when he failed to provide identification, but held that the frequency and length of the detention, and the nature of the treatment he would receive in detention, did not amount to serious harm within s 91R(2)(a), (b) or (c). The reviewer concluded that on this analysis, the nature of the detention was not sufficiently significant and thus did not constitute serious harm … In approaching the matter in this way, the reviewer made a qualitative assessment of the nature of the harm caused by the detention.
The argument was recorded by his Honour as:
20. The applicant contended in his original written submissions, and in oral submissions, that the reviewer wrongly applied a qualitative assessment to the nature of the harm. The applicant argued that s 91R(2)(a) is concerned with the threat, in the sense of a risk, of harm to life and liberty, whatever the nature of the harm. Whether there is a threat depends on an assessment of the likelihood of harm happening. But once that threat is established, s 91R(2)(a) operates so that the threat to life or liberty amounts to serious harm irrespective of the nature or extent of the potential harm to life or liberty. Thus, there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. Consequently, once the reviewer found that the applicant was at risk of detention, serious harm was established within the meaning of s 91R(2)(a) irrespective of the significance of the circumstances attending the detention.
That argument was accepted by his Honour at [30], [44] and [45] where his Honour stated:
30. The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.
…
44. In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.
45. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.
North J’s decision in WZAPN v Minister for Immigration and Border Protection (supra) has been considered in the following Full Federal Court decisions;
a)SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 per Robertson, Griffiths and Mortimer JJ;
b)BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 per Robertson, Griffith and Mortimer JJ; and
c)SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 per Robertson, Griffith and Mortimer JJ.
After a detailed consideration of the approach of the construction of s.91R and to the test in s.91R(1) and (2) their Honours found in SZTEQ at [58]-[60]:
58. Another aspect of the structure of s 91R(1), which we have touched on above, concerns the fact that it contains three separate and cumulative conditions for persecution to be established for the purposes of the Migration Act and the regulations, of which the requirement of serious harm is only one. We acknowledge that matters such as the length of detention, its frequency, purpose and character may also arise in determining whether the reason for the detention, which must be a Convention reason, is the essential and significant reason for the persecution (as required by s 91R(1)(a)) or involves systematic and discriminatory conduct (as required by s 91R(1)(c)). However, this does not mean that such matters may not also arise for consideration and evaluation in relation to the requirement of serious harm within s 91R(1)(b).
59. Unlike North J in WZAPN, we do not consider the absence of adjectival qualification in s 91R(2)(a) to be of significance, given the context of the provision as a whole. Rather, the absence of an adjective indicates that a threat to “liberty“ is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning. In this context, “liberty“ is a nuanced concept which takes its meaning from the context in which it appears, namely the requirement that the persecution involve serious harm, as is made clear in s 91R(1).
60. With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397:
… the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.
In the conclusion of SZTEQ at [154]-[155], their Honours state:
154. For the above reasons, and with great respect to North J, we do not consider that WZAPN correctly decided the construction of s 91R(2)(a). In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s 91R(1)(b) and Art 1A(2).
155. As the above analysis has sought to show, even if there was no error in his Honour’s examination of ss 91R(1) and (2) and the Convention concept of persecution by reference to “international human rights standards“ (see his Honour’s reasons at [43]), an issue which need not be determined in this appeal, contrary to his Honour’s reasoning, neither those standards, nor the jurisprudence and commentary about those standards in refugee decision-making supports the proposition that any deprivation of liberty must constitute serious harm for the purpose of the Convention.
On 17 June 2015 the High Court unanimously allowed an appeal from the Federal Court: see Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22. It also unanimously dismissed an appeal from the Federal Court which was WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82. The High Court held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself and without more, a threat to liberty within the meaning of s.91R(2)(a) of the Migration Act.
Ground 3
This claim alleges the Tribunal has failed to make further inquiries, in the manner noted in SZIAI (supra), in respect of whether Prabakharan was dead.
At [31] of the Decision Record the Tribunal stated:
31. …
A major aspect of the applicant’s claims rest on a claim that he was detained by the authorities and questioned at gun point in April 2012. Indeed this ,he claims, was the motivating factor in his deciding to leave Sri Lanka. Significantly, he claims to have been questioned about the whereabouts of Prabhakaran, the Tamil LTTE, leader and where he was and whether he was still alive. He was asked this over and over. I do not accept as reasonable to believe that he would have been questioned about this. It is well documented that Prabhakaran and his family were killed by the Sri Lankan army in the closing days of the Civil War in May 2009. I do not accept that anyone would be questioning him, or anyone else, on this topic in 2012. I find he has fabricated this questioning and detention so as to enhance his claims for a protection visa.
The Tribunal’s finding that Prabhakaran was killed in the closing days of the civil war in 2009 was reasonably open to it on the material before it. Contrary to the applicant’s submission, there was no requirement for the Tribunal to make further enquiries in order to satisfy itself in respect of this finding.
Her Honour Judge Emmett in SZSOY v Minister for Immigration & Anor [2014] FCCA 1811, citing Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [604]-[605], stated at [59]:
59. The RRT was entitled to rely on its accumulated knowledge from the repetitive nature of the matters in which it deals, given that it has access to official and other sources of information varied upon political and social circumstances in an applicant’s country of origin …
I am of the view the same reasoning can be used in respect of this issue.
No material was put before the Tribunal (or this Court) to suggest that Prabhakaran was still alive by the applicant, and it is not to the point that there may have been other material available to suggest so.
Accordingly, I am satisfied this finding was reasonably open to the Tribunal on the material before it and for the reasons it gave. There was no SZIAI obligation on the Tribunal to make further enquiries. This ground cannot be sustained and should be dismissed.
Grounds 4 & 5
Grounds 4 and 5 of the further amended application both relate to the following statement made by the Tribunal at [40] of the Decision Record, namely:
40. … There is no evidence that the law, any period of detention and fine, or the condition of detention, are being applied in a discriminatory manner.
Both grounds refer to evidence that was before the delegate, being the Temple University Information (CB 100). As noted in the Decision Record at [10] (CB 143), a copy of the delegate’s decision was provided to the Tribunal.
Having regard to the submissions advanced by both parties and the evidence before the Court, I prefer the Minister’s submission. The two grounds are founded on a literal interpretation of the words “no evidence” as they appear at [40] of the Decision Record. These grounds do not, however, engage with the remainder of the Tribunal’s reasons.
The Tribunal found there was no evidence to support the applicant’s claim that the law in question, the Immigration and Emigration Act 1949, would be “discriminatorily” applied to him upon his return to Sri Lanka. The Temple University Information (see above at [51]) does not refer to the law or to its application.
The Tribunal, at [30] of the Decision Record, then set out the country information considered by it. It relevantly stated:
30. The country information is as detailed in the delegate’s decision and as referred to by the agents in their submissions. I have also considered the following, and other material as mentioned below:
…
I am satisfied the Tribunal was cognisant of the country information before it, including the Temple University Information, and considered it in making its decision.
Further, none of the country information referenced by the Tribunal at [30] in its dot points (see [81] above) contradicts the finding made at [40]).
It is convenient to deal with Ground 5 first. This ground as pleaded by the applicant alleges a failure to consider relevant information, namely the Temple University Information.
This ground cannot succeed. As noted above, the Tribunal had express regard to the information at [10], then noted it had considered it at [30] of the Decision Record. The claim the Tribunal did not consider the Temple University Information cannot be sustained.
Having regard to the applicant’s submissions in respect of Ground 4, I am not satisfied they can be sustained. This is because the Tribunal did in fact consider the Temple University Information. Once considered, the finding made at [40] of the Decision Record by the Tribunal must accordingly be taken to be a “negative finding”. This is distinct to a no evidence at law ground, which has been pleaded by the applicant.
In Sunchen(supra), Perram J stated at [43]:
43. At the level of principle there is a difference between a finding of a positive fact for which there is no evidence, and a finding that something is not the case where there is some evidence to show that it is in fact so. …
As correctly submitted by the Minister, the former is an error of law where the latter is an error of fact only.
In SZTFS v Minister for Immigration & Anor [2015] FCCA 100, his Honour Judge Driver stated at [17]-[18] (referring to the authority of Sunchen):
17. The Minister submits that this ground should not be accepted by the Court. The two findings extracted above, are in substance, negative findings, ie, the Tribunal did not accept the applicant’s claims that he would be targeted because of his scar. There is considerable authority supporting the proposition that “the no evidence ground should not be available where the finding challenged is in substance a negative one“. I agree.
18 Furthermore, it is critical to recall the operations and functions of the Tribunal. There is no requirement that there be evidence rebutting the claims of an application before a Tribunal can hold that a particular assertion is not made out.13 Nor is the Tribunal required to accept uncritically the claims of an applicant.
(footnotes omitted)
In N258A/00A (supra), Justice Katz stated at [27]:
27. In the present case, I conclude that para476(1)(g) of the Act does not apply to findings of the non-existence of facts. In order for the paragraph so to apply, it would be necessary to give an extremely strained construction to the language actually used in it (as well as to the language actually used in both limbs of subs476(4) of the Act). Furthermore, there appears to be no reason of policy justifying the giving of such a strained construction to the provision. The giving of that construction to the provision would appear to amount to a departure from the longstanding distinction made in the law (including in administrative law) between finding a fact to exist when there is no evidence that that fact does exist (which is an error of law) and not finding a fact to exist when there is some evidence that that fact does exist (which is an error of fact only). Such a strained construction of the provision would thus involve this Court in an intrusion into the merits of the administrative decisions under review by it under the Act.
I am satisfied the Tribunal’s finding at [40] of the Decision Record was a negative finding.
In Sunchen (supra) Perram J stated at [44]:
[44] The analysis is quite different where a negative finding that something is not the fact is involved. If there exists evidence which contradicts that negative finding — that is, suggests that something is the fact — it remains rationally possible for the decision-maker to arrive at the same conclusion simply by rejecting that evidence as not credible. …
I agree with the Minister’s submission that this finding was “rationally possible” for the following reasons:
a)First, the Tribunal noted at [30] its detailed consideration of all the material before it. It then arrived at its conclusion at [40] of the Decision Record. It considered the position of those who return to Sri Lanka at [38], then found at [42] the applicant was not a person with “a level of profile that would cause him to be considered as a suspect by the authorities for any matter”. This conclusion was rationally possible for the Tribunal to reach on the material before it and for the reasons it gave; and
b)Second, as set out in NAHI (supra) at [11]-[14], the weight the Tribunal is to give country information is a matter for the Tribunal as part of its fact-finding function and is not amenable to judicial review. It was open to the Tribunal to either reject or place less weight on the Temple University Information than other country information before it.
Accordingly, I am of the view that the Tribunal’s finding at [40] of its Decision Record was a “negative finding” that was “rationally possible” for it to reach, for the above reasons. This ground also cannot be sustained.
Conclusion
None of the pleaded grounds in further amended application can be sustained. On a fair reading of the evidence before the Court, no error on the part of the Tribunal is apparent.
I am satisfied the application should be dismissed with the applicant ordered to pay the Minister’s costs.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
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