SZWCD v Minister for Immigration and Border Protection
[2018] FCA 1861
•26 November 2018
FEDERAL COURT OF AUSTRALIA
SZWCD v Minister for Immigration and Border Protection [2018] FCA 1861
Appeal from: SZWCD v Minister for Immigration & Anor [2018] FCCA 2223 File number: NSD 1191 of 2018 Judge: ALLSOP CJ Date of judgment: 26 November 2018 Catchwords: MIGRATION – application for protection visa – claims not accepted by Administrative Appeals Tribunal – no jurisdictional error found by Federal Circuit Court – leave sought to raise new ground of appeal – no real prospects of success – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 424AA, 425, 499 Cases cited: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 Date of hearing: 26 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the Respondents: K Morris of Clayton Utz ORDERS
NSD 1191 of 2018 BETWEEN: SZWCD
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
26 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
This is an appeal from orders made by the Federal Circuit Court of Australia on 2 July 2018 dismissing an application for judicial review of a decision of the Refugee Review Tribunal made on 22 January 2015.
Procedural history
The appellant is a citizen of Sri Lanka. He arrived in Australia by boat at the Cocos Islands on 29 June 2012. On 27 November 2012, the appellant lodged an application for a protection visa, and in doing so, he alleged that he feared persecution in Sri Lanka since he was of Tamil ethnicity and a member of a particular social group: failed Sri Lankan asylum seekers.
That application was refused on 15 July 2013 by a delegate of the Minister.
On 14 August 2013, the appellant applied to the Tribunal for a review of the delegate’s decision and the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa on 22 January 2015.
The appellant then applied on 12 February 2017 for judicial review of the Tribunal’s decision in the Federal Circuit Court. On 11 March 2015, a judge of the Federal Circuit Court summarily dismissed the proceedings on the basis that there were no reasonable prospects of success.
However, this Court set aside that order and remitted the matter to the Federal Circuit Court, differently constituted. The Federal Circuit Court again dismissed the appellant’s judicial review application on 2 July 2018. That is the subject of this appeal.
The primary judge set out the Tribunal’s summary of the appellant’s claim for protection at [7], as follows:
In its decision the Tribunal summarised the applicant’s claim for protection as follows:
a)in 2008 his father was beaten by the Sri Lankan navy. They also discriminated against his father in the issuance of fishing permits and curfews, which made it difficult to earn a sufficient income;
b)because of these issues, the applicant obtained work at a prawn farm in December 2011;
c)in February 2012 he discovered four of five Sinhalese men stealing from the prawn farm. These men started to target him. They sabotaged the farm’s electrical system and chased him four or five times, trying to hit him with sticks;
d)fearing for his life, the applicant quit his job. The men then came to his house looking for him. They later threatened him in the street and told his father that they would kill him (the applicant);
e)he feared harm and mistreatment from the Sri Lankan navy;
f)he feared arrest, detention, torture or death because of his Tamil race, imputed political opinion and because of his membership of the particular social groups comprised of young Tamil males and failed Sri Lankan asylum seekers;
g)he feared that if returned to Sri Lanka he would be detained and questioned upon arrival for departing the country illegally and for having sought asylum in a Western country; and
h)he was at risk of persecution because of cumulative factors including his Tamil ethnicity, his lack of education and limited skill set, his illegal departure and his status as a failed asylum seeker from the West.
The above is a fair summary of the matters raised in the appellant’s protection visa application.
In affirming the delegate’s decision not to grant a protection visa, the Tribunal made adverse credibility findings against the appellant. The primary judge at [9]–[10] provided a comprehensive account of the Tribunal’s reasoning, which I set out in full, as follows:
9For the following reasons, the Tribunal found that the applicant had fabricated his claims of past harm:
a) while the Tribunal accepted that Tamil fishermen such as the applicant’s father faced discrimination and harassment by the navy during the civil war in relation to the issue of fishing permits, it did not accept, based on country information, that the applicant or his father had been subjected to harm, mistreatment or discrimination in relation to their fishing since the end of the war. Consequently, the Tribunal did not accept that the applicant had been unable to earn a living or that he had been forced to change jobs. The Tribunal did not accept that the applicant faced a real chance of serious harm as a result of fishing licence issues, curfews or other restrictions;
b) in relation to the thefts at the prawn farm:
i) despite prompting from the Tribunal, the applicant’s evidence about this incident was vague, lacking in detail, general and repetitive;
ii) the applicant changed his story when the Tribunal expressed concerns or doubts about certain aspects of his evidence including, in particular, how far away he was from the thieves, his hours of work and whether his shift overlapped with a colleague;
iii) the applicant claimed in his 2014 statement [sic] that he saw the thieves sorting the prawns out of a net and stealing them, a “key detail” which had not been included in his 2012 statement or mentioned during his departmental interview in 2013. In the Tribunal’s view, this account was very different from the one he had provided in his 2012 statement, which was that he [had seen some men standing and talking and] suspected that they were responsible for the theft. The Tribunal found that the applicant had added to and changed his account, which reinforced its view that he was not recalling an event from memory;
iv) the applicant’s account about resigning his job – namely that he stopped going to work and did not tell his parents why, nor did his parents ask – was vague and lacking in its credibility; and
v) the applicant claimed that his employer came to his house to ask him why he had not come to work. However, he could not recall, even as an estimate, when this occurred;
c) the applicant’s account about the electrical fire lacked credibility in a number of respects and his description of the incident was vague, lacked detail and changed in response to the Tribunal’s concerns;
d) the applicant’s claim that he was chased by the thieves four or five times lacked credibility and was far-fetched:
i) his description of these events lacked detail. He did not know when or at what time of night they occurred, other than that they had occurred in February;
ii) in the Tribunal’s view, the applicant had no basis upon which to say or believe that these men wished to kill him because they thought he had reported them for stealing prawns, especially given his claim that they had run away from him during the first encounter, which suggested that they were scared of the applicant or of discovery by him;
iii) it also lacked credibility that the men would return just to kill the applicant and not to steal prawns, particularly given that the ponds had been left unattended each time the applicant had run away; and
iv) the applicant’s main job had been to protect the prawn farm and yet he did nothing about the thefts. The applicant’s explanation that he did not want to make his employer angry or be blamed for the thefts was at odds with his main duties and the purpose of his employment;
e) as for the applicant’s claim that the thieves came to his house and attacked him on the street;
i) his description of these events had been vague and lacking in detail;
ii) the applicant claimed that the men had grabbed had threatened to kill him, “crucial” details which had not been included in his 2012 statement. These details were also inconsistent with his claim, made in his 2012 statement, that he had not been able to understand what the men had been saying but had understood from their gestures that they were threatening him;
iii) also omitted from the applicant’s 2012 statement was the claim that his father had been kicked and punched during one of the home visits; and
iv) the applicant’s explanation of how the thieves found his address lacked credibility and he appeared to be making up explanations as he went along.
10The Tribunal considered the issues surrounding the applicant’s claims regarding his race, political opinion, and membership of a particular social group to be substantially the same, both independently and cumulatively. Relevantly for the present proceeding, while the Tribunal accepted that the applicant would be charged under Sri Lanka’s Immigrants and Emigrants Act for his illegal departure, it was not satisfied that this gave rise to a well-founded fear of persecution or the engagement of Australia’s complementary protection obligations because:
a) based on country information the Tribunal was satisfied that the applicant would be bailed immediately (unless he arrived on the weekend or on a public holiday) on his own recognisance or with a family member as guarantor;
b) no returnee who was just a passenger had been given a custodial sentence and the applicant had made no claims of organising the boat departure;
c) the fine which was likely to be imposed on the applicant would not amount to serious harm because he had the capacity to pay it;
d) Sri Lanka’s departure laws were laws of general application and their enforcement did not constitute persecution but prosecution and were not applied in a discriminatory manner against a particular group of returnees; and
e) even if the applicant were held on remand for a short period, the Tribunal did not accept that he would be treated differently and was not satisfied that any problems he might face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand would be aimed at him for a Convention reason. Moreover, the Tribunal considered those factors to apply generally and not specifically to persons of Tamil ethnicity.
The above is a thorough and accurate summation of the Tribunal’s reasoning.
In the application for judicial review filed on 12 February 2015, the appellant relied on the following two grounds of review, quoted without alteration:
The RRT made the following errors:
1. When deciding that cruel or inhumane treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the RRT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The RRT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails
2. In WZAPN v MIBP, the Federal Court held that even a short period of detention that threatens an applicant’s liberty will fall within the scope of s.91R(2)(a). therefore, this case law interprets that s.91R(2)(a) was not correctly applied by the RRT in my case
After these proceedings were summarily dismissed by, and subsequently remitted to, the Federal Circuit Court, the appellant filed an amended application, in which he alleged the following three grounds of review, quoted without alteration:
Ground 1
The Tribunal committed jurisdictional error in assessing whether there would be intention on the part of the authorities when he is detained “…would be remanded … pending a bail hearing.” [CB251; RRT at [101] in considering complementary protection the poor conditions (CB251 at [103]) and did not expressly consider Directions 56.
Particulars
1.1 Direction 56 provides that “[i]n performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department … to the extent they are relevant to the decision under consideration.
PAM3: Refugee and humanitarian – Complementary Protection Guidelines
PAM3: Refugee and humanitarian – Refugee Law Guidelines”
1.2 Section 18 of the PAM3: Refugee and humanitarian – Complementary Protection Guidelines (Complementary Protection Guidelines), headed “Intentionally inflicted pain or suffering”, states: “In certain circumstances, it may be appropriate to infer an intention to inflict severe pain or suffering if it is evident that such pain or suffering was or may be knowingly inflicted.
1.3 The Tribunal stated (at [103]) that it was not satisfied that “the poor conditions” were not intentionally inflicted on detainees.
1.4 The Tribunal did not consider whether it was “evident that such pin or suffering was or may be knowingly inflicted” and did not consider whether it was “appropriate to infer an intention to inflict severe pain or suffering”.
1.5 To that extent, the Tribunal did not take account of the Complementary Protection Guidelines and failed to comply with the Direction 56 and s 499(2A).
Ground 2
The Tribunal committed jurisdictional error because its credibility finding at (CB 237 – 41 at [13] – [46]) of the Tribunal’s reason in relation to Applicant’s claims / monitoring / surveillance [13] – [46]. The Applicant was not on notice that the findings of the Delegate may be departed from.
Particulars
2.1The Tribunal has not put the Applicant on notice for the purpose of s.425 of the Act.
2.2On this basis, the Tribunal found that the applicant was inconsistent in his evidence and thereby found adversely in relation to his credibility regarding his claims (at [13]–[46]).
2.3The Issue is determinative issue on which decision turned. The Applicant was not on notice.
2.4The Tribunal committed jurisdictional error.
Ground 3
The Tribunal committed jurisdictional error in consideration of social group.
Particulars
3.1The Tribunal considered PSG – young Tamil male (CB 243 – 44 at [54] – [64]) and failed asylum seeker from Western country (CB 245 – 50 at [68] – [95]).
3.2On this basis, the Tribunal failed to assess an important attribute – that the Applicant was from North / East area of Sri Lanka (Udappu).
3.3The Tribunal committed jurisdictional error.
The primary judge considered each of these grounds of review at [12]–[25] of his reasons before reaching the ultimate conclusion that no jurisdictional error on the part of the Tribunal had been demonstrated.
On the first ground, the primary judge considered that the appellant’s failure to tender a copy of PAM3 was in itself a sufficient reason to conclude that the ground had not been made out. In addition, the primary judge stated that the appellant neither demonstrated that the guidelines required the Tribunal to draw any particular inference nor discharged the onus of establishing that the Tribunal failed to consider the relevant parts of the manual, notwithstanding the specific references to PAM3 at [47] and [96] of the decision record.
In relation to the second ground, the primary judge concluded that the appellant failed to identify the issue that he alleged had not been an issue following the delegate’s decision but which became live at the Tribunal hearing and therefore that the s 425 allegation lacked meaningful substance. The primary judge further explained that the only issue which stood out as having been accepted by the delegate, but not readily accepted in similar terms by the Tribunal, was the appellant’s claim to have seen four or five Sinhalese men at night at the prawn farm and this claim was not rejected by the Tribunal.
Regarding the third ground, the primary judge was of the view that, having not been made aware of any express claim by the appellant that he feared persecution by reason of his Udappu origin, the claim did not arise sufficiently clearly on the material before the Tribunal that the Tribunal was nevertheless obliged to consider it. The primary judge referred to the encapsulation of the applicant’s claims to fear persecution in his written submissions, which made no reference to Udappu origin, and considered that the claims pressed before the Tribunal were those expressly articulated by his legal representatives.
The appeal to this Court
On 5 July 2018, the appellant filed a notice of appeal against the orders of the Federal Circuit Court made on 2 July 2018. The notice raised the following ground of appeal, quoted without alteration:
The federal Circuit Court judge failed to hold the RRT erred in law the error being a jurisdictional error in that it failed to asses future threat to the appelliant.
The principles applicable to the raising of a new ground of appeal are well settled. As was set out by the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] and [48]:
46…Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so…
…
48…Where…there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused…
The Minister in these circumstances has opposed the ground on the basis that it lacks merit and that there is no adequate explanation for the failure to raise the ground below; and further that the proposed ground seeks to invite the court on appeal to perform the trial court’s entire function and to effectively defeat the statutory scheme of judicial review and appeal therefrom and that this would be contrary to the timely and effective disposal of litigation in these kinds of matters.
Having looked at the material, it seems to me that the Tribunal did clearly consider each of the appellant’s claims to fear harm and the future threat to the appellant if he were returned to Sri Lanka. The Tribunal’s decision demonstrates that it identified and applied the relevant law and correctly and comprehensively dealt with the appellant’s claims and evidence. At [47], the Tribunal recognised that it must consider the applicant’s risk of harm not only currently but into the reasonably foreseeable future, and from [48]–[95], it proceeded to consider the situation in Sri Lanka and whether the appellant would face harm on his return in the reasonably foreseeable future.
The Tribunal likewise considered that if there was a real risk that the appellant would face serious harm if removed from Australia. Thus, the Tribunal considered the future and the question of the real risk of harm. The Tribunal was not satisfied that the appellant faced a real chance or a real risk of serious or significant harm now or in the reasonably foreseeable future.
I am unpersuaded that the only ground of appeal now put forward to this Court has any real prospects of success. For the same reasons as I would not permit the ground to be raised, but if I were to permit the ground to be raised, I would reject the ground. If the rolled-up single appeal ground can be seen to repeat the appeal grounds put before the learned primary judge, I am not persuaded that there is any merit in the appeal.
As to the first ground of the application before the Federal Circuit Court, as correctly noted by the primary judge, the Tribunal clearly and unequivocally stated that it had taken the PAM3 Guidelines into account, pursuant to Direction 56 and s 499 of the Act, and further clearly had regard to the various considerations required to be undertaken pursuant to the Guidelines. The Tribunal is only required to consider the Guidelines to the extent that they are relevant to the decision under consideration. In my view, the primary judge was correct to hold that the first ground had no prospects of success and should not be the foundation for any judicial review conclusion as to jurisdictional error.
As to the second ground of the Federal Circuit Court application, as noted by the primary judge, the appellant had failed to particularise in any meaningful or precise manner the issue that was said to become live at the tribunal hearing. The primary judge found only one notable difference between the Tribunal’s and the delegate’s findings, that is, as to the prawn theft incident, and that the Tribunal had clearly raised its concern on that matter with the appellant. Thus, the Tribunal had placed the appellant on notice that it had concerns about the appellant’s credibility, the credibility of his story and the appellant’s vague account and put these to the appellant pursuant to s 424AA of the Act. Again, the primary judge was correct to reject the second ground.
As to the third ground of the application, no express claim was made by the appellant to fear persecution by reason of his Udappu origins. The primary judge correctly held that no such claim arose sufficiently clearly on the material, having noted that the appellant was professionally represented and it could therefore be assumed that the claims he seeks to make are expressly raised by him and his advisors and not claims that are to be inferred. As noted by the primary judge, the appellant’s representatives had put on lengthy written submissions and no claim was raised as to the appellant’s attribute of being from the northeast area of Sri Lanka, that is, Udappu. The primary judge was correct to hold in these circumstances that the tribunal did not err.
It follows that no appellable error in the decision of the primary judge has been shown and that there is no basis to consider that the differently framed asserted error before this court should be seen as having any merit.
When the matter was called on for hearing, the appellant did not seek to put any submissions. The first respondent’s outline of submissions that have been filed in these proceedings were, prior to the hearing, interpreted to the appellant by the accredited interpreter present.
In these circumstances, the orders of the Court are that the appeal be dismissed with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 27 November 2018
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