SZUTM v Minister for Immigration
[2015] FCCA 1212
•11 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUTM v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1212 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic, political and particular social group persecution in Sri Lanka – whether the Tribunal overlooked a particular social group claim based upon the applicant’s status as a war widow, or constructively failed to exercise its jurisdiction, or made findings illogically or based on no evidence in relation to an allegation that the applicant had murdered her husband considered. |
| Legislation: Migration Act 1958 (Cth), ss.438, 440, 499 |
| Applicant A v Minister for Immigration (1997) 190 CLR 225 Applicant NAFF of 2002 v Minister for Immigration [2004] HCA 62; (2004) 221 CLR 1 Applicant S395 v Minister for Immigration (2003) 216 CLR 473 Australasian Meat Employees’ Union v Fair Work Australia [2012] FCAFC 85 Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v SZKRT (2013) 212 FCR 99 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZSRS (2014) 309 ALR 67 Minister for Immigration v SZSWB [2014] FCAFC 106 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 SZSSC v Minister for Immigration [2014] FCA 863 SZTAD v Minister for Immigration [2014] FCA 1256 |
| Applicant: | SZUTM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2010 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 May 2015 |
| Date of Last Submission: | 25 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Counsel for the Respondents: | Mr D Hume |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as further amended on 11 May 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2010 of 2014
| SZUTM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 19 June 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts concerning the applicant’s claims for protection and the decisions of the delegate and the Tribunal on them is derived from the submissions of the parties.
The applicant arrived in Australia on 6 April 2013 and on or about 14 May 2013 applied for a protection (Class XA) visa[1].
[1] Court Book (CB) 1-26
Lodged with the applicant’s visa application were a copy of the identification and stamped pages of her Sri Lankan passport[2], birth certificate[3], her late husband’s death certificate listing cause of death as “drinking poison”[4], various news articles[5], and a written statement[6].
[2] CB 27-32
[3] CB 34-37
[4] CB 38 and CB 33
[5] CB 42-64, 81
[6] CB 65-80
The applicant claimed in her statement that she was a Tamil, born in Kondavil, a suburb in the northern Sri Lankan city of Jaffna (capital of the district of the same name)[7]. Prior to the Black July riots in 1983, the applicant and her husband had been living in Colombo, where he worked as a public servant. However, after the riots and the start of the Sri Lankan civil war, she took refuge with her parents in Jaffna. In about 1990, Jaffna, then occupied by the Indian Peace Keeping Force, came under heavy shelling and bombardment and was reclaimed by the Liberation Tigers of Tamil Eelam (LTTE). During the shelling, the applicant’s father lost both his legs and died. Later, in 1995, Jaffna came under attack by the Sri Lankan Army (SLA) which ultimately regained control of the region. The applicant and her mother were amongst many Tamils who fled Jaffna at this time, moving from one refugee camp to another. They were detained at the army checkpoint in Vavuniya; however the applicant’s husband came from Colombo and bribed army officials to release them and they were able to continue on to Colombo[8].
[7] CB 75
[8] CB 76
The statement continues that, following the signing of the 2002 ceasefire agreement between the Sri Lankan government and LTTE, people could move around Sri Lanka once more and she and her husband returned to live in Jaffna to start farming and renovate their home. However in 2003 her husband was taken by the LTTE and made to work for them in Mullaitivu, training youths to build bunkers and platforms for their vehicles, boats and ships. The LTTE told her that if her husband tried to escape they would take her to Mullaitivu to work for them too. The situation in Jaffna deteriorated and the applicant was fearful that the peace accord would come to an end and the government and paramilitaries of the Eelam People’s Democratic Party (EPDP) would attack once again[9]. The applicant went to Colombo and her husband was able to leave Mullaitivu to meet her there; however, instead of her husband returning to Mullaitivu as he was supposed to, they went into hiding at a friend’s home in a Sinhalese area, expecting that the LTTE would come to take him back. However the LTTE cadres never came and the applicant later heard that they had been defeated[10].
[9] CB 77
[10] CB78
After the war ended, the government started to threaten and interrogate Tamils and the applicant was fearful of what would happen if they found out about her husband’s work for the LTTE in Mullaitivu. The applicant and her husband returned once again to Jaffna where she resumed working on the farm and he worked as a teacher. But in about January 2012, whilst celebrating the Hindu pongal festival, three army officers and paramilitaries entered their home and arrested her husband. They tortured him and said that they knew about his work for the LTTE and he would never be released. The applicant begged for her husband to be released and paid the paramilitaries money to release him. The paramilitaries agreed to secretly release her husband without the knowledge of senior authorities; however, when he was finally released and taken home, “he looked half dead”. The applicant went to get a doctor to treat her husband but, when she returned, she found he had committed suicide.
A few days later, the applicant was visited by army officers who said they had information she had been visiting Mullaitivu and giving vegetables and chickens to the LTTE on a regular basis, which she denied. She was ordered to fall at their feet and beg for them to believe her and was told that she would be detained whilst an inquiry took place. The applicant was detained in the same army camp where her husband had previously been detained; however she was able to bribe the paramilitaries with money from her family and was allowed to leave. The paramilitaries told her to leave Sri Lanka and that if she did not and was caught they would kill her if she identified them as those who had released her[11].
[11] CB79
The applicant was interviewed by a delegate of the Minister on 10 October 2013 and was notified by letter dated 28 November 2013[12] that her application for a protection visa had been refused.
[12] CB91
In considering whether the applicant’s fear was well-founded, the delegate set out a passage from the 2012 UNHCR Guidelines, where a number of risk profiles consistent with a need for international refugee protection were listed as follows[13]:
[13] CB101, 2012 UNHCR Guidelines at page 5
(i) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE);
(ii) certain opposition politicians and political activists;
(iii) certain journalists and other media professionals;
(iv) certain human rights activists;
(v) certain witnesses of human rights violations and victims of human rights violations seeking justice;
(vi) women in certain circumstances;
(vii) children in certain circumstances; and
(viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.
The delegate then quoted the following passage from the 2012 UNHCR Guidelines[14]:
[14] CB102, 2012 UNHCR Guidelines at page 33 (footnotes omitted)
A.6 Women in certain circumstances
Reports have documented high levels of sexual and gender-based violence against women and girls in the final phase of the armed conflict, as well as in the post-conflict phase, including in parts of the country not directly affected by the conflict. However, this type of violence remains under-reported and, if reported, inadequately investigated according to several sources.
Rape, assault with the intention to commit rape and “grave sexual abuse not amounting to rape” are prohibited under Sri Lankan penal law. Other sex-based crimes such as trafficking and sexual harassment are also prohibited according to the Penal Code. Marital rape is not a crime in Sri Lanka unless a judge has ordered a spousal separation.
A number of factors have been cited in various reports as contributing to increased insecurity and vulnerability of women in the north and east of Sri Lanka. The most relevant include the following: a) large numbers of female-headed households in the areas most affected by the armed conflict; b) women’s weak economic position; c) high militarization, including dependency on security forces for access to detained family members; d) impunity and weak administration of justice; e) prostitution and vulnerability to trafficking in displacement or post-relocation; and f) the vulnerable position of former female LTTE cadres and war widows.
The delegate noted that according to country information single female-headed households increased substantially in the former conflict areas of the north and east and that the government had estimated there to be up to 90,000 war widows. She also noted that one particularly vulnerable group are young widows who struggle to provide for themselves and their dependants and that stigma often prevents them from remarrying. However the delegate reasoned that the applicant was an older widow who owns her home and is able to support herself on her husband’s government pension, that she and her mother have a poultry farm and can grow vegetables and can access the support of her aunt, the Grama Niladharai or village officer[15]. The delegate also noted that there are programs and assistances provided for single female headed households, but recognised that “there is more work to be done in adapting to the changing role of women”[16].
[15] CB 103
[16] CB 104
The delegate then considered whether the applicant fit the profile of being a person suspected of having links with the LTTE. She found that there was no evidence to associate the applicant with the LTTE now and that neither she nor any member of her family had been a member of any organisation. The delegate also noted that the applicant had been able to obtain a passport and had no problems leaving and returning to Sri Lanka in 2008 and that she and her husband had lived in Colombo, a government controlled area for almost 10 years. She concluded that the applicant would not have a profile of imputed political opinion, namely that of an LTTE supporter, and therefore would not be of interest to the SLA[17].
[17] CB 104
In relation to complementary protection, the delegate concluded that there were not substantial grounds for believing there is a real risk the applicant would suffer significant harm as a consequence of being removed to Sri Lanka. She said that she understood “the applicant would have felt a deep loss due to the death of her husband and the difficulties that she may face as a widowed woman living in the Northern part of Sri Lanka” however she had access to a government pension, her own property, the support of her mother and aunt and access to support services[18].
[18] CB 106-107
On 20 December 2013, the applicant applied to the Tribunal for review of the delegate’s decision[19]. On 31 December 2013, the Minister’s Department received a copy of a letter apparently referring to the applicant and describing her as a “criminal” (the Confidential Letter)[20]. On 7 January 2014, the Minister’s delegate determined that s.438(1)(b) of the Migration Act 1958 (Cth) (Migration Act) applied to the Confidential Letter. The Confidential Letter suggested that the applicant had been responsible for her husband’s death, that poisoning had been involved and that there was a criminal case pending.
[19] CB 109-114
[20] CB 119
The Confidential Letter was not provided to the applicant, which is a course that is permitted under s.440(1) where the Tribunal has given a written direction. The applicant has taken no issue with that in her grounds of review and, accordingly, the Minister has not put on evidence going to the existence and content of such a direction.
On 16 April 2014, the Tribunal invited the applicant to appear before it for a hearing on 30 May 2014[21]. The applicant indicated she wished to attend the hearing[22], which she did[23]. The applicant was unrepresented. The transcript of the hearing is at the Annexure to the Affidavit of Gail Margaret Hargreaves dated 22 October 2014 (Tr).
[21] CB 121-122
[22] CB 123-124
[23] CB 131
During the hearing, the Tribunal questioned the applicant at some length. The member put to the applicant information that there had been significant improvements in the situation in Sri Lanka[24] and that even former LTTE soldiers were living “normal lives”[25]. The member also put to the applicant the substance of the Confidential Letter[26] and afforded the applicant opportunity to comment on its contents and to put forward any claim arising from it. The applicant claimed that her father-in-law did not like her[27], that she was not aware of the police investigating the death[28] and there was no criminal case against her[29]. The applicant then said that if she went back to Sri Lanka her “husband’s father … will do this to me like he will make me get arrested and you know he will give me trouble”[30]. The member put to the applicant that “if he was going to make these accusations to the police surely he would have done so already”[31], to which she replied, “I don’t know about that he always threatened me and um that’s what he used to do so I don’t know what he has done other than that”[32].
[24] Tr 24
[25] Tr 23
[26] Tr 25-29
[27] Tr 25
[28] Tr 25
[29] Tr 26
[30] Tr 28
[31] Tr 28
[32] Tr 28
On 19 June 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection (Class XA) visa. The Tribunal’s reasons appear at CB 135-156. The Tribunal rejected the applicant’s central claim that she feared persecution based on her connection to the LTTE[33]. The Tribunal also considered and rejected any claim that the applicant had a well-founded fear of persecution as a failed asylum seeker[34]. The applicant does not impugn those findings.
[33] see particularly [39]-[43]
[34] [45]-[48]
The Tribunal was aware of its duty, under s.499 of the Migration Act and Ministerial Direction No 56, to consider DFAT country information[35]. It purported to discharge that duty as indicated by the excerpts from DFAT country information reports set out at [46], [80]-[82], [87]-[88]. The country information went to critical aspects of the claims which the applicant now makes. The Tribunal was, for example, aware of and considered DFAT’s assessment that “there are no officials laws or policies that discriminate against Sri Lankans (including Tamils) on the basis of their ethnicity … DFAT further assesses that there is no government-sanctioned discrimination in the implementation of laws and policies”[36]. The Tribunal was also aware of and considered DFAT’s assessment that, while people in the north have some fewer opportunities that is “due to the effects of the conflict … as well as general economic conditions, and not as a result of discrimination on the basis of ethnicity”[37].
[35] [79]
[36] [82]
[37] [82]
The Tribunal addressed the allegations in the Confidential Letter at [44] and, at [49] and [59], addressed the claims the applicant made when the substance of that letter was put to her.
At [44], the Tribunal stated that it was “not in a position to make findings as to whether the applicant was responsible for the death of her husband by poisoning or that a criminal case is pending as claimed in the confidential letter”. The Tribunal observed that it was “unable to discuss the contents of the letter with its author”. At [44], the Tribunal also noted the applicant’s comments “that her father-in-law accused her of murder before she left Sri Lanka, out of revenge, as he was a troublesome character who did not like her”. The Tribunal said that it made “no findings in this regard”.
At [49], the Tribunal noted the applicant’s claims that she feared her father-in-law would cause her to be arrested and that she was innocent of the charges. The Tribunal rejected the applicant’s claim that her father-in-law would, in the future, report her to the police. The Tribunal also observed that, if she was charged with a criminal offence, it is law of general application and not persecutory for a Convention reason. This was, by inference, supported by the DFAT country assessment referred to above, indicating that there were no official laws or policies discriminating against Sri Lankans on the basis of their ethnicity and there was no government-sanctioned discrimination in the implementation of laws and policies. The Tribunal concluded that it did “not accept ... that there is a well-founded fear of persecution based on [the applicant’s] father-in-law’s possible allegations to police, nor that the law would be implemented or enforced in a discriminatory manner”.
At [59], in the context of considering the complementary protection criterion, the Tribunal again said that it was “not satisfied that the applicant’s father-in-law would cause her to be arrested on the basis that she had poisoned her husband”. The Tribunal did not accept that her father-in-law would report the matter to the police now. It also observed that if the applicant “is innocent then the rule of law will apply and she will not suffer any kind of harm”.
The present proceedings
These proceedings began with a show cause application filed on 18 July 2014. The applicant now relies upon a further amended application filed in court by leave on 11 May 2015. The grounds in that application are:
1. The second respondent (“Tribunal”) failed to consider a claim clearly arising from the evidence before it and thereby fell into jurisdictional error.
Particulars
In finding that:
a. it was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention, and
b. further or in the alternative, it was not satisfied that there are significant grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm,
the Tribunal only considered whether the applicant would suffer harm due to imputed political opinion, being a failed asylum seeker or due to revenge by her father-in-law in Sri Lanka.
The Tribunal did not consider whether the applicant would be subjected to serious or significant harm by reason of being a woman in north Sri Lanka who is a war widow or, alternatively, by reason of that fact in combination with other factors.
In its reasons, the Tribunal gave determinative weight to county information, which included the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012. That report contained evidence which supported the proposition that women in the above circumstances may be members of a particular social group in need of international refugee protection.
2. Rather or in the alternative to 1, the Tribunal constructively failed to exercise its jurisdiction.
Particulars
At the Tribunal hearing, the applicant claimed that her father-in-law did not like her, accused her of murdering her late husband (his son) and wanted to take revenge on her.
The Tribunal referred at the hearing an in its reasons to a confidential letter received by the first respondent’s department on or about 31 December 2013 (CB119) (“Confidential Letter”) which the Tribunal said, suggested the applicant had poisoned her husband, that after one year pooja she had escaped to Australia and that there was a criminal case pending.
On the applicant’s understanding, the Confidential Letter had been written by her father-in-law and was evidence corroborating her claim.
The Tribunal at [44] of its Statement of Decision and Reasons (“Reasons”) said that it was not in a position to make findings as to whether the applicant was responsible for the death of her husband by poisoning or that a criminal case is pending and made no finding as to whether her father-in-law did not like her and accused her of murder out of revenge.
However at paragraphs [49] and [59] of its Reasons, the Tribunal nonetheless held that it did not accept the applicant’s father-in-law would report her to the police.
3. Further to 2, there was no evidence to support the Tribunal’s finding at [49] that if the applicant is charged with murdering her husband “the law would not be implemented or enforced in a discriminatory manner” or, alternatively, that finding was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
4. Further or in the alternative to 3, there was not evidence to support the Tribunal’s factual finding at [59] that if the applicant is charged with murdering her husband the rule of law would apply or, alternatively, that finding was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
In addition to the book of relevant documents filed on 2 September 2014 I have before me as evidence two affidavits:
a)the affidavit of Gail Margaret Hargreaves made on 22 October 2014 and filed on 17 November 2014, annexing a transcript of the applicant’s hearing before the Tribunal on 30 May 2014; and
b)the affidavit of the applicant made and filed on 15 April 2015, annexing a copy of the UNHCR Eligibility Guidelines for Assessing the National Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012.
In addition, I required the Minister to produce to the Court the Confidential Letter dealt with by the Tribunal which was included in the book of relevant documents in redacted form. The unredacted version of the letter became a confidential exhibit.
The parties made both oral and written submissions, including post hearing submissions by the applicant with the benefit of the confidential exhibit.
Consideration
Ground 1 – did the Tribunal fail to consider a claim clearly arising from the evidence before it?
I prefer the submissions of the Minister on this issue.
The applicant contends that the Tribunal failed to consider “the applicant’s claim that she is a widow from the north of Sri Lanka and would suffer harm for this reason, either alone or in combination with other factors including her ethnicity”[38]. The applicant overreaches by describing the matter which the Tribunal is said not to have considered as “the applicant’s claim”. A claim of that kind was not put by the applicant, either to the delegate or to the Tribunal.
[38] Applicant’s Submissions (AS) [30]
It can be accepted that, in some cases, a failure to consider a substantial, clearly articulated claim relying upon established facts may give rise to jurisdictional error[39].
[39] eg Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at [23]-[24] (Gummow and Callinan J) (Dranichnikov); NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [55]-[63] (Black CJ, French and Selway JJ) (NABE)
It can also be accepted that there is no bright distinction between “claims” and “mere evidence”[40]. One proposition which follows from this is that the Tribunal may fall into error if it fails to consider an issue squarely arising from established evidence even if that issue is not the subject of an express claim by the applicant. Because, in the present case, the applicant appears to contend that the issue arose on the evidence, but was not the subject of an express claim, it is this line of authority that the applicant must bring herself within to succeed.
[40] Minister for Immigration v SZSRS (2014) 309 ALR 67 at [46]-[54] (Katzmann, Griffiths and Wigney JJ); Minister for Immigration v SZKRT (2013) 212 FCR 99 at [103]-[115] (Robertson J)
Secondly, while there may in some circumstances be error in failing to consider an issue arising from evidence, those circumstances are limited.
As a general proposition, “a decision of the Tribunal must be considered in light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process”[41]. Accordingly, “[j]ust as the Tribunal cannot curtail its statutory task by failing to appreciate and determine a claim made by an applicant, the Tribunal cannot enlarge its statutory task by identifying and dealing with claims that were never made”[42]. It is not the law that a party “can simply present the facts and leave it to the tribunal to search out, and find, any available basis which theoretically the Migration Act provides for relief”[43].
[41] Applicant S395 v Minister for Immigration (2003) 216 CLR 473 at [1] (Gleeson CJ). See also Minister for Immigration v SZSWB [2014] FCAFC 106 at [33] (Gordon, Robertson and Griffiths JJ)
[42] SZTAD v Minister for Immigration [2014] FCA 1256 at [17] (Bromberg J)
[43] Dranichnikov at [78] (Kirby J)
As a “threshold” point, the claim “must emerge clearly from the materials before the Tribunal”[44] and should arise from “established facts”[45].
[44] NABE at [67]-[68]
[45] Dranichnikov at [24]
It is appropriate to ask “whether there were in fact relevant submissions of substance which were clearly articulated and were made by or on behalf of the applicant which were not evaluated by the Tribunal”[46].
[46] SZSSC v Minister for Immigration [2014] FCA 863 at [82] (Griffiths J)
Thirdly, any claim which the applicant contends was not considered did not emerge clearly from established facts:
a)the claim was not expressly made by the applicant;
b)the Tribunal did not accept as a fact that “war widows” were at greater risk of harm. Put another way, it did not accept as a fact that the matters stated at page 33 of the 2012 Guidelines were correct. The Tribunal was not obliged to accept the 2012 Guidelines. In that sense, any claim did not arise from “established facts”;
c)further, the Tribunal had before it DFAT country information, to which it was obliged to have regard under Ministerial Direction No 56. That country information indicated that the security situation in Sri Lanka had greatly improved since the end of the military conflict[47]. It also indicated that, while people in the north faced challenges, the true cause of those challenges was the effects of the conflicts and general economic conditions[48]. This country information weighed against any contention that war widows remained particularly vulnerable. The Tribunal was, of course, entitled to accept the DFAT country assessment, and was not obliged to accept any assessment in the 2012 UNHCR Guidelines. Not least is that because the DFAT assessment was far more up-to-date. Again, this indicates that any claim said not to have been considered did not emerge clearly from established facts;
d)this is not a case in which the 2012 Guidelines identified a clear risk of harm said to obtain in all cases. The Guidelines were far more qualified. The Guidelines said that women “in certain circumstances” “may” be in need of international refugee protection[49]. That is, with respect, a statement of the obvious. The Guidelines then identify a number of factors which “have been cited in various reports as contributing to increased insecurity and vulnerability of women”, including “the vulnerable position of … war widows”[50]. The Guidelines did not state that being a war widow was a risk factor; rather, they stated that it has been “cited … as” a risk factor. Neither did the Guidelines state that being a war widow was a risk factor for persecution or significant harm; rather, they stated that it was a risk factor for “increased insecurity and vulnerability”. In my opinion, this is not the clear, unqualified language which is necessary before a claim can be said to emerge clearly or to squarely arise. The applicant invites this Court to take an equivocal statement from an item of evidence before the Tribunal and transform that into a substantial, clearly articulated argument. I choose not to accept that invitation.
[47] [81]
[48] [82]
[49] 2012 Guidelines at page 5
[50] at 33
In any event, there was ample material before the Tribunal to indicate that the applicant was not one of the “women in certain circumstances” identified by the 2012 Guidelines. The delegate had identified ample reasons why that was so: the applicant owned property, was not a young widow and had family connections. The applicant did not pursue any claim before the Tribunal arising out of those findings of the delegate. The Tribunal was not obliged to consider a claim which, on the material before it, simply did not arise because the applicant was not a woman in the “circumstances” contemplated by the 2012 Guidelines.
Ground 2 – did the Tribunal constructively fail to exercise its jurisdiction?
I prefer the submissions of the Minister on this issue.
The applicant’s second ground asserts a constructive failure to exercise jurisdiction. The applicant’s contention is that the Tribunal fell into error of the kind identified in Applicant NAFF of 2002 v Minister for Immigration[51]. The contention is that the Tribunal considered that it needed to take steps before its review function could be complete, but nevertheless failed to take those steps. Those steps are said to relate to the claims arising from the Confidential Letter.
[51] [2004] HCA 62; (2004) 221 CLR 1 (NAFF)at [31]-[33]
The present case is fundamentally distinct from NAFF. The distinction is that the applicant simply cannot show that the Tribunal considered that its review function was incomplete, but nevertheless proceeded to make a decision on the review. The plurality said at [30] of NAFF:
There are some inferences which may reasonably be drawn from the Tribunal member's final statements when they are set against the background recorded in her reasons for decision. One is that she regarded the appellant's evidence about the detentions as having potential significance in the review. Another is that she had formed the belief that, despite her detailed questioning, the appellant had not done himself justice in circumstances where he had twice said he was confused and where doubts about interpretation had arisen – perhaps because he had not fully understood the questions which she had put to him, perhaps because in the stress of the moment he had not been able fully to communicate appropriate answers to them, perhaps because of the difficulty in assessing the credibility of evidence given through an interpreter. A third inference is that she believed that, as a result, the procedure had not been satisfactory because it had not been wholly fair to the appellant. In consequence, she thought that the process of review – so far as the appellant was to participate in it – should not be brought to a close, and that it was appropriate to hear more from him about the detentions. It can also be inferred that she had decided that a fair technique by which to take the matter forward was for the difficulties arising from the apparent inconsistencies to be explained to the appellant in written questions to be formulated by her, and to be calmly answered by the appellant in less stressful conditions.
The Tribunal member’s “final statements” are recorded at [11] of NAFF. Essentially, the member stated that it was necessary for her to obtain further information from the applicant.
This is not that case. The inferences drawn by the High Court at [30] of NAFF are not open. In particular:
a)the Tribunal did not state that it considered it needed to take further steps, which it had not taken. Any inference that a Tribunal considered that its review function was incomplete should not be lightly drawn. It was appropriate in light of the Tribunal’s own words to draw that inference in NAFF. That is not so here;
b)the Tribunal here gave the applicant ample opportunity to make comments on the Confidential Letter. It can be noted that the applicant does not contend that there was some breach of procedural fairness in that respect. This is not a case in which it can be said that the Tribunal believed it should give the applicant a further opportunity to comment, but nevertheless determined the review without affording that opportunity. The member put to the applicant the matters of fact going to the credibility of the applicant’s claims. She asked “So if you are innocent of these claims you have nothing to worry about is that correct” and “But if he was going to make these accusations to the police surely he would have done so already”[52]. The member also asked whether there was “anything else” which the applicant would like to say[53]. The member was entitled to be satisfied on that basis that she had taken all the steps necessary and appropriate to discharge her review function;
c)this is also not a case in which the Tribunal considered that it should, but failed, to seek comment from the author of the Confidential Letter. The Tribunal expressly said that it was “unable to discuss the contents of the letter with its author”[54]. Again, this is not a case of the Tribunal completing a review function in circumstances where it considered that there were reasonably available, but undischarged, steps which it could take to complete that review.
[52] Tr 28
[53] Tr 29
[54] [44]
The applicant alludes to an inconsistency between, on the one hand, the Tribunal statement at [44] that it was not in a position to make findings as to whether the applicant was responsible for the death of her husband by poisoning or that a criminal case was pending and, on the other hand, its statement at [49] and [59] that it did not accept the applicant’s claim that her father-in-law will report her to the police[55]. As will become apparent in relation to the remaining grounds of review, the statements can be reconciled. The statement [44] concerns the applicant’s responsibility for her husband’s death and the pendency of a criminal case. The statement at [49] and [59] concerns whether her father-in-law will report her.
Grounds 3 and 4 – was the Tribunal’s finding at [49] and [59] unsupported by any evidence or illogical?
[55] AS at [41]
At [49] of its reasons the Tribunal stated[56]:
[56] CB 145
The applicant also claimed at the Tribunal hearing that she fears her father-in-law will cause her to be arrested as he alleges she murdered her husband. This claim was not made to the Department, and was only made when the Tribunal referred to the confidential letter provided to the Department which suggested she had been involved in murdering her husband. The applicant has stated that she is innocent of these charges, and as set out earlier the Tribunal is not in apposition to make any finding on this. On the basis of the evidence before it, the Tribunal does not accept that her father-in-law will report her to the police if he has not done so already (as claimed by the applicant). If he has already done so (as may be suggested in the confidential letter), then her claim has no veracity. Furthermore, if she is charged with a criminal offence this is a law of general application and is not a persecutory law for a Convention reason. As Brennan CJ stated in Applicant A:
… the feared persecution must be discriminatory. … [It] must be “for reasons of” one of [the prescribed] categories. This qualification … excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.[57]
Consistently with Australian law, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) states:
56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim – or potential victim – of injustice, not a fugitive from justice.[58]
The Tribunal does not accept therefore that there is a well-founded fear of persecution based on her father-in-law’s possible allegations to police, nor that the law would be implemented or enforced in a discriminatory manner.
[57] Applicant A v MIEA (1997) 190 CLR 225, at 233.
[58] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, 1992) (Handbook) at [56].
Later, at [59] the Tribunal said[59]:
The Tribunal is also not satisfied that the applicant’s father-in-law would cause her to be arrested on the basis that she had poisoned her husband. The Tribunal does not accept that he would report this to the police now, if he had not done so in the past (as claimed by the applicant). Further the applicant claims that she is innocent of such a charge. The Tribunal is not satisfied that there is a real risk of significant harm in this regard, as if she is innocent then the rule of law will apply and she will not suffer any kind of harm.
[59] CB 147
Those statements sit somewhat uneasily with the Tribunal’s statement at [44] where it said[60]:
The Tribunal is not in a position to make findings as to whether the applicant was responsible for the death of her husband by poisoning or that a criminal case is pending as claimed in the confidential letter The Tribunal is unable to discuss the contents of the letter with its author and does not have access to any evidence related to this matter. The Tribunal notes the applicant’s comments that her father-in-law accused her of murder before she left Sri Lanka, out of revenge, as he was a troublesome character who did not like her. The Tribunal makes no findings in this regard.
[60] CB 144
There is an element of speculation in the Tribunal’s reasoning at [49] and [59]. That speculation was, however, a consequence of the Tribunal’s inability to make findings on the allegations in the confidential letter. The applicant’s challenge to these findings is certainly arguable but, after consideration, and with the benefit of access to the confidential exhibit, I have decided that jurisdictional error has not been established in these grounds.
It is convenient to address Grounds 3 and 4 together as they raise similar issues. The error asserted in each case is a kind of illogicality or “no evidence” error.
The challenge to [49] is that there was no evidence for the Tribunal to find, or it was otherwise illogical or irrational for the Tribunal to find, that “if the applicant is charged with murdering her husband, ‘the law would not be implemented or enforced in a discriminatory manner’”. The ground is apt to mislead because it suggests that it contains a quote from the Tribunal decision, but it does not. In fact, the Tribunal stated “[t]he Tribunal does not accept … that the law would be implemented or enforced in a discriminatory manner”. Properly excerpted, the Tribunal was identifying that it was not making a finding that the law would be implemented or enforced in a discriminatory manner, rather than that it was making a positive finding that the law would not be implemented or enforced in that way. If the applicant’s ground is taken on its face, it does not state a finding which can be said to have been made without evidence or illogically.
Nevertheless, it can be accepted that, at [49], the Tribunal did say that, if the applicant were “charged with a criminal offence this is a law of general application and is not a persecutory law”. It can also be accepted that the Tribunal did say at [59] that, if the applicant is innocent, “the rule of law will apply and she will not suffer any kind of harm”.
I reject these grounds for three reasons, consistently with the Minister’s submissions. First, the cases identify that extreme caution should be exercised before findings of no evidence or illogicality should be made. Accordingly, “[c]onsiderable caution needs to be exercised before finding that an absence of evidence to support a factual finding necessarily constitutes jurisdictional error”[61]. In part, that is because there is no reviewable error in simply making a wrong finding of fact. Similarly, “judges should not lightly interfere with” decisions on the grounds of unreasonableness or illogicality[62]. In Minister for Immigration v SZMDS[63], Crennan and Bell JJ said that the illogicality ground called for a determination that the finding was “one at which no rational or logical decision maker could arrive on the same evidence”[64]. While the applicant contends that Li has superseded SZMDS, she does not identify any particular statement from Li said to conflict with Crennan and Bell JJ’s statement of the principle in SZMDS. It can be noted that, in Li, Gageler J appeared to accept that unreasonableness would normally only arise where a finding was made which “no reasonable repository of power” could have made[65]. In any event, what is clear is that findings of no evidence and unreasonableness ought not to be lightly made. Mere disagreement with a finding or a reasoning process does not bespeak error[66].
[61] Australasian Meat Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [92] (Flick J)
[62] Minister for Immigration v Li (2013) 249 CLR 332 at [106] (Gageler J) (Li). See also at [108]-[109], [113] (Gageler J)
[63] (2010) 240 CLR 611 (SZMDS)
[64] at [130]-[131]. See also at [77]-[78] (Heydon J)
[65] at [88]
[66] Li at [30]
Secondly, there was evidence to which the Tribunal had regard, which was capable of satisfying it of the statements it made in [49] and [59] concerning discriminatory or unfair operation of laws. In particular, the Tribunal considered the DFAT country assessment that “today there are no official laws or policies that discriminate against Sri Lankans (including Tamils) on the basis of their ethnicity, including in relation to access to education, employment or access to housing. DFAT further assesses that there is no government-sanctioned discrimination in the implementation of laws and policies”[67]. The Tribunal was entitled to accept that statement. It plainly considered it, having regard to its excerpting at [82]. It was open, based on the DFAT country assessment, to find that criminal laws were laws of general application, were not persecutory for a Convention reason and that, as a general proposition, the rule of law applied in Sri Lanka. That there may have been evidence before the Tribunal upon which it could have formed a different view does not mean that the Tribunal fell into error. The weight to be given to evidence was a matter for the Tribunal. That different findings of fact could be made does not disclose reviewable error.
[67] at [82]
Thirdly, and in the event that I am wrong at [52] and [53], the findings at [49] and [59] were not central to the Tribunal’s decision. In that sense, any error probably was either not jurisdictional or relief would likely be refused for discretionary reasons. The reason the findings were peripheral was because, having regard to the way the applicant put her case, the risk of prosecution would only arise if the applicant’s father-in-law were, in the future, to report her to the police and the criminal process were to ensue. That claim was logically based on the proposition that, to the extent that the Confidential Letter asserted that the applicant had already been reported to the police, it was false. The Tribunal had to consider the claim as it was put. The Tribunal was entitled to reject or not accept the claim. The Tribunal failed to accept that the applicant’s father-in-law would report her to the police[68]. The Tribunal was entitled to fail to form any positive satisfaction as to the steps her father-in-law would take. Accordingly, the Tribunal was not satisfied of the necessary factual premise which would render material to the outcome its findings at [49] and [59] regarding the discriminatory or unfair operation of the criminal laws.
[68] at [49], [59]
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 11 June 2015
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