SZWBV v Minister for Immigration and Border Protection

[2018] FCA 147

FEDERAL COURT OF AUSTRALIA

SZWBV v Minister for Immigration and Border Protection [2018] FCA 147

Appeal from:	SZWBV v Minister for Immigration & Anor [2017] FCCA 1924
File number(s):	NSD 1764 of 2017
Judge(s):	O'CALLAGHAN  J
Date of judgment:	23 February 2018
Catchwords:	MIGRATION – appeal from decision of Federal Circuit Court – whether Federal Circuit Court or Administrative Appeals Tribunal erred by not finding brother’s registration with UNHCR in Malaysia corroborated appellant’s claims – whether Federal Circuit Court or Administrative Appeals Tribunal failed to consider whether appellant was associated with LTTE supporters – whether Federal Circuit Court properly considered evidence regarding appellant’s foot injury – appeal dismissed
Legislation:	Migration Act 1958 (Cth), ss 5, 36, 65, 91R(1)(c), 424AA, 425, 438
Cases cited:	SZTAL v Minister for Immigrationand Border Protection (2017) 91 ALJR 936; (2017) 347 ALR 405; [2017] HCA 34
Date of hearing:	13 February 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	58
Counsel for the Appellant:	Appellant appeared in person
Counsel for the First Respondent:	Ms M Donald
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1764 of 2017

BETWEEN:

SZWBV
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	O'CALLAGHAN  J
DATE OF ORDER:	23 FEBRUARY 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1. The appellant appeals from the order of a judge of the Federal Circuit Court of Australia (the primary judge) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal, affirming a decision of a delegate of the first respondent (the delegate) not to grant the appellant a Protection (Class XA) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is a citizen of Sri Lanka.  He arrived in Australia as an unauthorised maritime arrival on 1 August 2012. On 13 December 2012, he lodged an application for a protection visa.

3. On 20 August 2013, the delegate refused to grant the visa.

4. On 22 August 2013, the applicant applied to what was then called the Refugee Review Tribunal (RRT) for review of the delegate’s decision.

5. On 4 December 2014, the appellant appeared before the RRT to give evidence and present arguments.

6. On 20 January 2015, the RRT affirmed the delegate’s decision.

7. On 9 February 2015, the appellant sought judicial review of the RRT’s decision.

8. On 5 June 2015, a judge of the Federal Circuit Court (not the primary judge) ordered a writ of certiorari, quashing the RRT’s decision and remitting the matter for reconsideration according to law.  Nothing turns on that on this appeal.

9. On 23 July 2015, the Administrative Appeals Tribunal (the Tribunal), into which the RRT was merged on 1 July 2015 sent to the appellant a notice of reconsideration of application for review.

10. On 9 November 2015, the appellant appeared before the Tribunal and with the assistance of his representative and a Tamil interpreter, gave evidence and presented arguments.

    Hearing before the Administrative Appeals Tribunal

11. On 4 December 2015, the Tribunal affirmed the delegate’s decision.

    Appellant’s claims

12. The appellant is a young male Tamil from the Northern Province of Sri Lanka. He claimed to fear harm on the basis of his Tamil ethnicity, his support of the Liberation Tigers of Tamil Eelam (LTTE), his status as a victim of extortion, his status as a failed asylum seeker and also as a result of his having left Sri Lanka illegally.

13. In support of his claims to fear harm, the appellant made a number of factual claims. Those claims were, in summary, as follows:

    (1)His father worked as a driver for the LTTE and was taken by the Sri Lankan Army in 1995. His father was either missing or dead.

    (2)His family home in Jaffna was destroyed and his family relocated to a refugee camp in Mannar, before resettling in Chilaw in 2002.

    (3)In 2009, he was taken and questioned by police relating to suspected LTTE links. He was detained, but later released. He was subsequently subjected to frequent police questioning.

    (4)In 2010, he was beaten by the police for his failure to put up a flag to celebrate the killing of a local LTTE leader.

    (5)He was forced to assist a Sinhalese politician in a local election in 2011. He and his family were threatened, robbed and assaulted on a number of occasions by Sinhalese men at the behest of the politician’s opponent.

    (6)In February 2014, after the appellant had left Sri Lanka, he was informed that the Sinhalese men had visited his family home and searched for him. His brother was assaulted by the Sinhalese men and subsequently fled to Malaysia and has approached and registered with UNHCR Malaysia.

    Decision of the Tribunal

14. The Tribunal did not accept the appellant as credible or truthful.  The Tribunal found that he had “altered and embellished his evidence considerably since he was first interviewed” and that he appeared to manufacture his claims.

    Evidence accepted

15. Though it accepted some of the appellant’s claims, the Tribunal rejected the majority of them. In summary, the Tribunal accepted that:

    (1)The appellant may have been initially viewed with suspicion when he moved from Jaffna to a predominantly Sinhalese area in Chilaw and that there may have been ongoing resentment directed towards the small Tamil population there.

    (2)The appellant was questioned in 2009 and may have been approached by the authorities on other occasions.

    (3)The appellant assisted in an election campaign.

    (4)The appellant’s father may have assisted the LTTE as a driver from time to time and his father has been missing since 1995.

    (5)On return to Sri Lanka, the appellant may be questioned at the airport and held on remand in overcrowded and unsanitary conditions and it would be known that he was a failed asylum seeker.

    (6)The appellant’s brother was registered with UNHCR in Malaysia.

    Evidence not accepted

16. The Tribunal was not satisfied that the evidence established that Tamils were at risk of serious harm on the basis of their ethnicity alone, or because they were from a particular part of Sri Lanka.

17. The Tribunal did not accept that the appellant was the subject of ongoing harassment by the authorities since 2003.

18. Further, the Tribunal had doubts that the appellant was harmed by persons in his village because of his family’s association with the LTTE or as a result of his, or his family’s, involvement in assisting the electoral candidate.

19. The Tribunal also did not accept that the appellant was forced to assist in the election campaign, that he was assaulted by Sinhalese men or that these men searched for him after he left Sri Lanka. Nor did it accept that the appellant’s father was a driver for the LTTE other than on a limited basis or that the appellant’s family were viewed as LTTE sympathisers as a result.

20. The Tribunal did not accept that the appellant would be mistreated by authorities on return to Sri Lanka as it found that he did not have an adverse profile and would not be suspected of LTTE involvement. The Tribunal was not satisfied that the poor conditions in remand would amount to systematic and discriminatory conduct on the basis that those conditions apply to all returnees who have left Sri Lanka illegally, and not specifically to Tamils.

21. The Tribunal did not accept the applicant’s claim to fear harm on the basis of a denial of social and economic rights.

22. Further, the Tribunal noted that the appellant had not provided any evidence of his claimed involvement in LTTE events in Australia, despite being invited to do so. The Tribunal considered it unlikely that he had attended these events, and noted that even if he had, it was unlikely that this would be known by anyone in his village or the Sri Lankan authorities.

23. In considering the appellant’s claims with respect to his illegal departure and status as a failed asylum seeker, the Tribunal found that the appellant would not be imputed with a pro-LTTE opinion because he had applied for asylum overseas. The Tribunal considered the processes that the appellant would be required to go through upon return to Sri Lanka under the Immigrants and Emigrants Act , finding that the IEA was a law of general application, which did not contain any element of persecution.

24. Further, the Tribunal did not consider that the short-term nature of the imprisonment that the appellant would likely face as part of the return process amounted to serious harm.

25. In relation to the likelihood that the appellant would have to pay a fine under the IEA, the Tribunal noted that there was no evidence before it to suggest that the appellant would be unable to pay it, or that he was without any relative able to provide surety. The Tribunal had regard to post-hearing submissions which stated that the Tribunal failed to enquire whether the appellant would be able to raise the bail for his release. In this respect, the Tribunal noted that the appellant had not claimed that he would be unable to pay or raise money for the bail and that such a claim was inconsistent with his evidence that his family owned a successful prawn farm.

    Complementary protection claim

26. In respect of the complementary protection criterion, the Tribunal referred to its earlier findings in concluding that there was no real risk that the appellant would face significant harm in relation to any of his claims. In considering the treatment that the appellant might receive as a result of his illegal departure, the Tribunal did not accept that the appellant’s questioning, bail conditions, detention on remand or fine would involve significant harm as defined in s 5(1) of the Act.

27. Further, the Tribunal was not satisfied on the evidence before it that the pain or suffering caused by overcrowding and other prison conditions in Sri Lanka was “intentionally inflicted” on prisoners as required by the relevant definitions in the Act.

28. Considering the appellant’s claims individually and cumulatively, the Tribunal found that he did not satisfy the criteria in ss 36(2)(a) or 36(2)(aa) of the Act.

    Proceedings in the Federal Circuit Court

    Grounds of review in Federal Circuit Court

29. The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The appellant advanced the following grounds of review:

    (7)The Tribunal erred failing to assess for complementary protection whether period of detention of up to “a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and unsanitary conditions is intentionally inflicted in consider of complementary protection for consequences of illegal departure and/or failed asylum application. The Tribunal engaged in jurisdictional error by failing to ask itself the right questions and misconstruing the provisions when addressing whether Sri Lankan law concerning illegal departure could attract protection under the complementary protection provisions.”

    (8)The Tribunal accepted that the Applicant’s brother had been issued with UNHCR card in Malaysia but was not satisfied of the claimed harm. The Tribunal committed jurisdictional error when it asked the wrong question and failed to ask the correct question.

    (9)The Tribunal accepted that the Applicant’s father was missing. The Applicant claimed LTTE connections through father’s involvement in transportation. The Tribunal did not address key elements of risk of “association”.

    (10)The Tribunal denied the Applicant procedural fairness and thereby breached s 425 and/or 424AA of the Act when it failed to put determinative issues to the Applicant. The Tribunal committed jurisdictional error. The Tribunal misapprehended the Applicant’s claims.

    The Federal Circuit Court dismissed the application for review

30. The primary judge dismissed the application.

31. As to ground one, the primary judge found that it was clear from the Tribunal’s reasons that it did consider the applicant’s risk of facing both serious and significant harm as a consequence of his detention upon return, and that the Tribunal’s reasoning did not indicate a misunderstanding or misapplication of the definitions of “intentionally inflicted”, “intended to cause”, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” in s 5(1) of the Act. (As to which now see SZTAL v Minister for Immigrationand Border Protection (2017) 91 ALJR 936; (2017) 347 ALR 405; [2017] HCA 34).

32. As to ground two, the primary judge noted that the UNHCR card in respect of the appellant’s brother appeared nothing more than an “appointment card” which indicated that the appellant’s brother may have been engaged in some UNHCR process. The primary judge found that the claims relating to the UNHCR status of the appellant’s brother were identified and adequately addressed by the Tribunal and noted that, whilst the Tribunal accepted that the appellant’s brother had registered with the UNHCR in Malaysia, it did not accept that he had done so because he was sought by the authorities or because of any perceived or actual links with the LTTE. Further, the Tribunal did not accept that the appellant’s brother’s registration with the UNHCR “corroborated” his claims.

33. As to ground three, the primary judge found that, on a fair reading of the decision record, the Tribunal found that, at best, that the appellant’s father drove a vehicle for the LTTE on nothing more than a limited basis and that this occurred over 20 years ago. The primary judge observed that the Tribunal did not accept that this would result in the appellant and his family being viewed as LTTE sympathisers. The primary judge accepted that the Tribunal addressed this claim, but found that on the basis of the limited involvement of the appellant’s father with the LTTE, no risk of imputed association arose.

34. As to ground four – that the Tribunal failed to comply with s 425 of the Act because it failed to put determinative issues to the appellant, namely concerns in relation to the appellant’s claim of injury to his foot by assailants – the primary judge found that the appellant should have been aware that the injury claim was at least partly in issue. The primary judge noted that the Tribunal accepted the fact of the injury but not the asserted cause of it. The primary judge found that the credibility of the appellant’s explanation for the injury was an issue of which the appellant should have been aware. Absent any transcript, the primary judge was unable to say that the issue was not discussed at hearing and found that the asserted breach lacked necessary evidentiary foundation.

35. Accordingly, the primary judge dismissed the application.

    Appeal to this court

36. On 6 October 2017, the appellant filed a notice of appeal against the order of the primary judge.  He advances three grounds.

37. Ground one concerns the significance of the fact that the appellant’s brother had been issued with a UNHCR card in Malaysia; ground two concerns an alleged failure by the Tribunal to consider the significance of the appellant’s “association” with his father; and ground three is an allegation by the appellant that he was denied procedural fairness by the Tribunal.

38. The grounds are put as follows:

    Ground 1

    [The primary judge] erred (at para 30 – 31) that the claim that the brother left home was critical evidence The Tribunal accepted that the Applicant’s brother had been issued with UNHCR card in Malaysia but was not satisfied of the claimed harm. His Honour should have found that the Tribunal committed jurisdictional error as it asked the wrong question and failed to ask the correct question.

    Particulars

    His Honour should have found that the Tribunal did not address whether the issue of UNHCR card posed any risk; it failed to ask the correct question. His Honour should have found that the Tribunal did not ask itself whether the issue of UNHCR card would impute the Applicant with the Applicant being anti-government.

    Ground 2

    His Honour erred in consideration of the “association” issue (at para 33 – 34). The Tribunal accepted that the Applicant’s father was missing. The Applicant claimed LTTE connections through father’s involvement in transportation. His Honour should have found that the Tribunal did not address key element of risk of “association”.

    Particulars

    The Tribunal should have addressed whether the claim of father’s involvement in LTTE would impute him with LTTE connections. The Tribunal also did not address what the consequences of the outcome would be.

    Ground 3

    His Honour should have found that the Tribunal denied the Applicant procedural fairness and thereby breached s425 and/or 424AA of the Act when it failed to put determinative issues to the Applicant. The Tribunal committed jurisdictional error. The Tribunal misapprehended the Applicant’s claims.

    Particulars

    His Honour should have found that the Tribunal failed to put the Applicant on notice of dispositive/determinative issues – delegate did not make adverse findings about the various incidents claimed by the Applicant; the Tribunal proceeded make adverse finding without giving the Applicant chance to be heard on issues.

    His Honour has thereby erred (at para 35 – 40).

    Appellant’s written submissions

39. The appellant also filed written submissions. To some extent those submissions endeavour to expand upon the grounds of appeal.

40. As to ground one, the written submission is as follows (uncorrected):

    7. The Appellant claimed that on the basis of the risk to brother he would be harmed. The Appellant submits that [the primary judge] (at [30]-[31]) erred in the Court below.

    8. The Tribunal has not dealt with the claim that the Appellant’s brother had fled to Malaysia on the basis that there is continuing interest in the Appellant’s family.

    9. The Appellant submits that the Tribunal has not realistically engaged with the claims and thereby erred in concluding that the brother’s departure did not corroborate the Appellant’s claim in its findings.

    10. The Appellant submits that such information can have bearing upon the Appellant’s claim.

    11. The Appellant submits that His Honour should have found that the Tribunal committed jurisdictional error in making findings that the brother’s departure had no bearing on the Appellant’s claim.

41. As to ground two, the written submission is quite lengthy. It contains a large amount of material which is not referable to the ground of appeal, and which does not constitute any other proper ground of appeal.  It also contains a number of assertions which make little or no sense.

42. As to ground three, the written submission contends that “[t]he claims of injury to the foot by assailants were previously accepted. The Appellant provided further documentary evidence. The Tribunal’s rejection of the document is not rationally based.”  The written submission further contends that “[t]he findings of the AAT were reached without the appellant being given meaningful hearing on this issue. The Tribunal did not address the claims when the appellant had put the Tribunal on notice that the delegate had not taken all circumstances into consideration.”

    Oral submissions on appeal

43. The appellant made brief submissions at the hearing of the appeal, aided by an interpreter.  I found what he said very hard to follow.  In substance, he said that he did not want to return to Sri Lanka because in 2016 a Sinhalese politician or person killed his uncle believing him to be the appellant’s father.  When I said to the appellant that he had told the Tribunal that his father went missing in 1995, he said that “[t]hat’s my stepfather”. He also said that the injury to his leg happened when a Sinhalese politician threw a knife at him.  I do not have regard to these matters because, to the extent that I understand them, they seek to challenge the merits of the Tribunal decision and/or were never raised before.

    Consideration of ground one: the brother’s UNHCR card

1. In my view, the appellant’s contention that the Tribunal committed a jurisdictional error in relation to its consideration of the significance of the evidence concerning the appellant’s brother’s UNHCR card is without merit.

2. It is clear from the Tribunal’s reasons that it correctly characterised the appellant’s submission in that respect, and gave detailed reasons for rejecting it. The Tribunal records (at [11]) that the appellant’s representative submitted that the fact that the appellant’s brother had been issued with an UNHCR card “corroborates [his] claim that he would continue to be persecuted by Sinhalese men in his community if he were returned to Sri Lanka, and that his family continue to suffer harassment and persecution as a result of their Tamil race and imputed support of the LTTE.”

3. That submission was dealt with by the Tribunal in these terms:

   [40] The Tribunal accepts that the applicant’s brother has registered with UNHCR in Malaysia. The Tribunal does not accept that the fact that he has done so “corroborates” the applicant’s claims. The Tribunal has not accepted the applicant’s claims and does not accept that the fact that the applicant’s brother, has also left Sri Lanka, establishes that he has done so because he was sought by the authorities or unknown persons or persons who wanted the applicant to assist in the election campaign. The Tribunal does not accept the evidence before it that the applicant’s brother has left Sri Lanka due to any bashings which at any association with the applicant or because of the family’s involvement in supporting electoral candidate or as a result of any links with the LTTE, perceived or otherwise.

   See also [11], [45], and [48] of the Tribunal’s reasons.

4. In my view, the primary judge was correct to find (at [30] of his reasons) that the claims relating to the UNHCR status of the appellant’s brother were identified and adequately addressed by the Tribunal that no appellable error is disclosed. Consequently, I find that the primary judge was correct to make the findings that are summarised at paragraph [30] above.

5. Ground one must therefore fail.

   Consideration of ground two: association with father

6. This ground also fails. It is plain from the Tribunal’s reasons that it expressly considered what the appellant calls “the key element of risk of ‘association’ [with his father].”  As the Tribunal explained [at paragraph 55 of its reasons, emphasis added]:

   [55] … the Tribunal does not accept that the applicant has an adverse profile or personal circumstances which will result in him being viewed as of any interest to the authorities. In circumstances where the applicant was not a member of the LTTE, never occupied any position of influence, was not a supporter of the LTTE, and his only link to the LTTE is his father’s assistance of some kind over 20 years ago at a time when almost everyone in LTTE occupied areas had some association the LTTE, the tribunal is not satisfied that there is a real chance that the applicant will be imputed as having a pro–LTTE political opinion upon his return to Sri Lanka. The Tribunal was not satisfied that he was ever involved in any pro–LTTE activities whilst in Sri Lanka that could in any way be perceived as him having supported the LTTE at that time. The Tribunal does not accept the applicant has any background or he will be viewed as being someone who was politically active because he has spent a considerable period of time away from Sri Lanka. Nor does the Tribunal accept a submission that it does not matter how long ago the applicant left Sri Lanka or how long ago his father was involved in the LTTE, this will always be remembered. As stated above, the applicant was a young boy with his father died and spent most of his life outside of Jaffna and in a Sinhalese dominated area. The Tribunal does not accept that his father’s association with the LTTE will result in the applicant being viewed as an LTTE supporter or sympathiser or that the risk of this occurring will be increased because of the applicant’s time spent in Australia or as a result of his illegal departure and application for asylum…

7. The primary judge was correct to find (at [33]) that such a finding was open to the Tribunal that no jurisdictional error could be discerned. No appellable error in the reasoning of the primary judge is disclosed.

   Consideration of ground three: the injured foot

8. The appellant next contends that the Tribunal rejected his medical evidence of the injury to his foot.  That is wrong.  The Tribunal accepted that his foot was injured, but did not accept that it was injured in the circumstances claimed by the appellant, as the following passage of the Tribunal’s reasons makes clear:

   Nor does the Tribunal accept that the applicant was assaulted by Sinhalese supporters of a Sinhalese candidate when he lost the election or that he was assaulted and mugged by Sinhalese men or had a knife thrown at him or that his uncle and stepfather were assaulted in their homes. The Tribunal accepts the medical document showing that the applicant’s leg was injured, but is not accept that this occurred when he had a knife thrown at him by Sinhalese people. The Tribunal considers that the applicant has attempted to rely on an unrelated incident where he was injured in an attempt to establish claims for protection.

9. The appellant also says that he was denied procedural fairness because the Tribunal did not comply with ss 425 and 424AA of the Act when it failed to put determinative issues to him.

10. Section 425(1) of the Act provides that “[t]he Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

11. Section 424AA of the Act provides:

    (1) If an applicant is appearing before the Tribunal because of an invitation under section 425:

    (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b) if the Tribunal does so--the Tribunal must:

    (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    (2)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A (1F).

12. There is no support for the appellant’s contention that he was not on notice of the issue about his foot.  The primary judge was, in my view, correct to conclude that the appellant should have been aware, having regard to the terms of the RRT’s decision, that his claim of injury to his foot by assailants was at least partly an issue before the Tribunal.

13. In any event, absent a transcript of the Tribunal hearing, the claim cannot succeed in this case.

14. The appellant contends that the Tribunal failed to comply with s 424AA of the Act, but the answer to that submission is the same – he was on notice about the significance of the foot injury. In any event, the appellant requires leave to raise s 424AA because it was not raised before the primary judge. I decline to grant that leave in circumstances where the contention about s 424AA was not said to raise, in substance, any different basis for review.

15. There being no appellable error on the part of the primary judge or jurisdictional error on the part of the Tribunal demonstrated, the appeal must be dismissed, with costs.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

Associate:

Dated:        23 February 2018