MZZKA v Minister for Immigration and Border Protection [2014] FCA 633 | Case summary

Did the Appellant make the suspended sentence claim? 7 I will deal first with the issue which underlies the challenge raised by particulars 1.2 and 1.3 of Ground 1 and particular 3.1(2) of Ground 3 of the Notice of Appeal. 8 The appellant contended that the Tribunal failed to consider a claim or an integer of a claim that he made that he would be detained on being returned to Sri Lanka, because by departing Sri Lanka illegally for the second time, the appellant had activated a suspended sentence of imprisonment imposed upon him in May of 2010. 9 In relation to the Tribunal's protection obligations task under s 36(2)(a), the appellant contended that the Tribunal's failure to consider that his suspended sentence would be activated, should he be returned to Sri Lanka, affected the Tribunal's proper consideration of the severity of the penalty the appellant would face on being returned and thus the extent to which he had a well founded fear of persecution. In relation to the Tribunal's complementary protection obligations task under s 36(2)(aa), the appellant contended that by failing to consider his claim that his suspended sentence would be activated, the Tribunal failed to consider whether his likely imprisonment on his return to Sri Lanka would constitute torture, degrading treatment or degrading punishment. 10 The relevant authorities are not in dispute. The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [61] (Black CJ, French and Selway JJ). The articulated claim must arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J). An unarticulated claim that is raised on the evidence will not depend for its exposure on constructive or creative activity by the Tribunal: NABE at [58]. 11 There are a small number of relevant facts which I need to outline before analysing the appellant's contention. The first is that the appellant was caught attempting to illegally leave Sri Lanka in 2009. He was subsequently charged and in May 2010 was convicted. The Tribunal accepted by reference to a translated copy of a court order (the Court Order) that the appellant was fined Rs.20,000 with three months' imprisonment in default of payment. The Court Order, so far as is relevant, was in the following terms: According to this 06 months imprisonment with heavy work. I withhold this for five years. I hereby impose a penalty of Rs.20,000/- (Twenty thousand only) failure to pay the fine he will be sentenced for three (03) months. 12 The Court Order was provided to the Tribunal by the appellant after the Tribunal's hearing. Other than providing the Court Order, the appellant did not suggest to the Tribunal that he was the subject of a suspended sentence which would be activated on his return to Sri Lanka. 13 The primary judge dealt with the assertion that the appellant had raised a claim about the potential activation of a suspended sentence at [71]-[81] of her Honour's reasons. Her Honour set out various excerpts from the transcript of the hearing and other material relied upon by the appellant in support of his contention. The primary judge concluded at [80]: At no stage was the issue put squarely before the Tribunal in terms of a breach of the provisions of the court order made on 30 April 2010. Nor was it, in my view, apparent on the face of the material before the Tribunal that the Applicant had a claim based on the court order that he would be imprisoned on his return to Sri Lanka without the Tribunal constructing [sic] the document and making certain assumptions about the Sri Lankan legal system. In my view, it could not be said that the claim clearly arose from the material before it. 14 The appellant accepted that the primary judge was correct to conclude that at no stage was the issue squarely put before the Tribunal. However, the appellant disputed the primary judge's conclusion that "it could not be said that the claim clearly arose from the material" before the Tribunal. 15 I see no error in the primary judge's conclusion that the asserted claim did not clearly arise on the material before the Tribunal. I disagree with the appellant's contention that the Tribunal should have discerned that the claim in question was made because the Tribunal was provided with the Court Order and that order relevantly stated "I withhold this for five years". 16 The potential punishment, including the potential for imprisonment, which the appellant feared on return to Sri Lanka was a matter which was directly raised during the hearing before the Tribunal. Despite that, the existence of a suspended sentence or its potential activation was not raised. Further, the text of the Court Order relied upon is ambiguous as to whether a suspended sentence was imposed. Additionally, the appellant's contention called upon the Tribunal to make various assumptions about Sri Lankan law, including as to the circumstances in which a suspended sentence would be activated. 17 In all those circumstances, a reasonably competent Tribunal was not required to appreciate the existence of the appellant's claim. The primary judge did not err. For those reasons, particulars 1.2 and 1.3 of Ground 1, and particular 3.1(2) of Ground 3 must be rejected.

Did the Tribunal consider the CID threat and reporting breach claim? 18 The other claim that the appellant contended was not considered by the Tribunal was that he had a well founded fear of being persecuted if returned to Sri Lanka "as a consequence of the threat made by Thumintha [and] as a consequence of [the appellant's] breach of reporting conditions to the CID" (the CID threat and reporting breach claim). The CID is the acronym for the Criminal Investigation Division of the Sri Lankan police force. Thumintha is an officer of the CID. 19 The formation of the state of satisfaction required for the purposes of ss 36(2)(a) and 36(2)(aa) of the Migration Act involves two steps, which were explained in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (at [34]) (Kenny, Griffiths and Mortimer JJ) as: …first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded. 20 The Tribunal may fall into error if it fails to correctly understand the basis, or the bases, upon which an applicant claims a well founded fear of persecution. The jurisdictional error, in such a case, is the failure of the Tribunal to perform the statutory task imposed on it by the relevant provisions of the Act: MZYTS at [31]. 21 The Tribunal must address, cumulatively, all of the essential elements of the claim or claims raised by the material or evidence: HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [7] (Merkel J). 22 The Tribunal's consideration of such material must be "real or active": MZYTS at [39]. As Kirby J said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (at 595): …the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief. 23 As the Full Court emphasised in MZYTS, the task for a court on review is not to assess the quality of the Tribunal's reasons, but rather to consider what the Tribunal's reasons, as they are, reveal about the Tribunal's performance of its statutory task (see MZYTS at [57]). 24 The Minister accepted that the CID threat and reporting breach claim was made by the appellant. The issue in contention is whether that claim was considered by the Tribunal in accordance with the principles outlined above. 25 The imposition upon the appellant of reporting conditions and the threat which the appellant alleged that Thumintha made occurred, on the appellant's account, at the culmination of a series of events which ultimately led to the appellant fleeing Sri Lanka in 2012. Briefly summarised, those events (as alleged by the appellant) were as follows: 1. In 2007, the Tamil Makkal Viduthalai Pullikal (TMVP) captured, detained and tortured him because he refused to join them. He managed to escape, but was forced into hiding for a period of two years. 2. In 2009, he attempted to leave Sri Lanka by boat but was "cheated" by the smugglers. His vessel was intercepted by the Sri Lankan navy. 3. He was taken to a detention centre by the CID where he was imprisoned, interrogated and tortured to reveal his alleged links to the LTTE. 4. In 2010, after several delays, he was brought to Court accused of being a LTTE supporter and of attempting to depart from Sri Lanka illegally. He was found not guilty of being a LTTE supporter, but found guilty of attempting to depart Sri Lanka illegally. He was released from detention, but fined. 5. When he was released, Thumintha told him that he had to report to the CID every Sunday, and to give information about the activities of the LTTE, which he did for about 18 months. 6. On each occasion that he reported to Thumintha, he told the officer that he did not have any information about the LTTE. 7. In late 2011, Thumintha accused him of lying, and threatened to kill him or to accuse him of hiding weapons if he did not give information about the LTTE. An accusation of hiding weapons "meant life imprisonment." 8. Rather than comply with Thumintha's orders, he went back into hiding. His father assisted him to arrange a passage out of Sri Lanka, and this time he succeeded in escaping. 26 The primary judge concluded that the Tribunal did consider and reject the CID threat and reporting breach claim. The primary judge reasoned at [68] that "the Tribunal dealt with the issue of why the CID would continue to be interested in" the appellant at [49] to [50] of its reasons. The primary judge then set out those paragraphs which are in the following terms: [49] The Tribunal asked the applicant why would the CID still be interested in him after he had been found not guilty of being associated with the LTTE; the Tribunal put it to the applicant that it doubted the CID continue to have an interest in the applicant based on the evidence that charges against him had been dismissed by the Court. He replied that even though he has been found not guilty, he has been tortured by the CID and because he escaped and because he stopped reporting to the CID it is interested in him. He said that the other reason is that the CID is interested in him because he has been arrested for LTTE suspicion. He said the CID do not believe what the Court says and they do not follow what the Court orders. He said there are many incidents of kidnapping and torture even though Courts find people are not guilty. [50] The Tribunal asked the applicant whether he is wanted in Sri Lanka for any crime or offence. He replied he has not committed any offence although he departed Sri Lanka illegally. The applicant said that there are no arrest warrants current for his arrest if he returns to Sri Lanka. 27 By reference to that extract from the Tribunal's reasons, the primary judge at [69] then said that "the Tribunal dealt with these claims" at [125] and set out that paragraph of the Tribunal's reasons as follows: On the evidence before it, the Tribunal does not accept that the CID has an intention to harm the applicant because it disregards the decision of the Court in Sri Lanka. Although the Tribunal accepts that there may be instances where the CID may consider the decision of a Court to have been incorrect, in this case, the Tribunal found the applicant's claims as to the attention directed towards him by the CID, and his claim that the CID intend to harm him, insincere and rehearsed. Based on the Tribunal's findings as to the (sic) all of the applicant's circumstances, the Tribunal is not satisfied the CID have an intention to target the applicant for harm as claimed, or in any way. Similarly, the Tribunal does not accept the applicant will return with a heightened and pre-existing anti-government& pro-LTTE political profile due to his Tamil ethnicity, adverse encounters with TMVP, attempted/illegal departures, or for any other reason. 28 Lastly, the primary judge expressed at [70] the following conclusion: I am satisfied that the Tribunal did deal with the Applicant's claim that he would be imputed with a heightened political profile because of his breach of reporting conditions with the CID. 29 There are two aspects of the primary judge's approach which, in my view, have led the primary judge into error. The first is that the primary judge has, it appears to me, wrongly characterised [49] and [50] of the Tribunal's decision as a summation of the claims made by the appellant relating to the CID which the Tribunal recognised it needed to consider. Those particular paragraphs appeared in the Tribunal's decision under the heading "Tribunal hearing". By reference to the terms of those paragraphs, their context and a comparison of them with the transcript of the hearing, the paragraphs in question are clearly no more than a summary of one question posed by the Tribunal during the hearing and the answer given by the appellant to that question. 30 Insofar as the Tribunal sought by its decision to provide a summary of what it recognised as the appellant's protection claims, the Tribunal did that at [107] of its decision under the heading "Findings and Reasons" and the sub-heading "Assessment of refugee protection claims". 31 Paragraph [107] of the Tribunal's reasons is in the following terms: In summary, the applicant protection claims are that he fears he will be persecuted if he returns to Sri Lanka for reasons of his race, political opinion, on the basis of membership of a particular social group, and that the applicant is entitled to complementary protection. The Tribunal addresses these separate limbs of the applicant's claims in the following paragraphs. As indicated above, in a pre-hearing submission, the applicant has claimed a fear of persecution based on the cumulative effect of the following: • his Tamil ethnicity; • his adverse encounters with the TMVP, which resulted in his abduction and attempted forced recruitment by them; • his attempted illegal departure from Sri Lanka in November 2009; • his forcible detention by the Sri Lankan authorities between November 2009 and May 2010 during which he was repeatedly accused of being an LTTE sympathiser; • his May 2010 appearance at the Matra Magistrates Court which resulted in a positive finding of an attempted illegal departure from the country; • his illegal departure from Sri Lanka in March 2012; • his application for protection in Australia; and • the repeated visits to his family home in Santhively by the Sri Lankan authorities regarding the applicant's absence which have been ongoing since 2007. 32 Immediately thereafter and at [108], the Tribunal's decision notes that "these claims" will be considered under the headings which are said to follow. 33 The point form summary given by the Tribunal at [107] was, as the Tribunal stated, extracted from a pre-hearing submission made by the appellant's agent (the agent's submission). What has been extracted from the agent's submission is a point form summary of the matters which the appellant contended that the delegate to the Minister failed to appreciate would result in the appellant returning to Sri Lanka with "a heightened (and pre-existing) anti-government and pro-LTTE political profile". 34 The last dot point in the agent's summary refers to the "applicant's absence" and it is that last dot point which is picked up by the Tribunal as its last dot point at [107] of the Tribunal's decision. However, a fuller description of what the agent's summary was dealing with in respect to that issue was given at [28] of the agent's submission as follows: From about late 2011 till about March 2012, the Applicant hid at various locations in the Batticaloa district (including a Parish Church and his relatives houses) whilst planning his departure from Sri Lanka. During this time, the Applicant learned that the CID had made repeated visits to his family home regarding the Applicant's absence and failure to comply with his reporting requirements. That submission was made by the agent in the context of the preceding four paragraphs as follows (citations omitted): [24] Following his release from detention, a CID officer (Thumintha) told the Applicant that he was required to report to their office - in Murakkoddaneni (a neighbouring village) - every Sunday. The Applicant was also informed that he was not permitted to travel or work outside the Batticaloa District without approval and that he was required to collect information for the CID regarding any LTTE activities in Santhively. Fearing punishment, the Applicant agreed to these terms and reported to the CID office every Sunday. On each occasion he would tell the CID that he did not have any information regarding the LTTE. [25] On 14 June 2010 the Applicant was married with Kowsha TINOJ, a Hindu Tamil born on or around 14 August 1992. [26] On Sunday, in about late 2011, whilst reporting to the CID office the Applicant was accused - by Thumintha - of lying to the CID. Thumintha threatened that he would kill (or otherwise falsely accuse the Applicant of involvement in weapons dealings) if he failed to provide the CID with information on the LTTE's activities. [27] The Applicant was terrified. He was sure that he would be killed or otherwise seriously harmed by the CID in the event he failed to provide them with information on LTTE activities (which he did not wish to be involved in due to the inherent dangers) and so he went into hiding once again. 35 Although the "applicant's absence" is referred to in the Tribunal's summary of the appellant's claims at [107], neither the threat made by Thumintha nor the failure by the appellant to comply with his reporting conditions is expressly included. The Tribunal appears to have addressed "the applicant's absence" and what it perceived to arise from it at [113] of its decision. In that paragraph the Tribunal stated: It is submitted by the applicant that there have been repeated visits to his family home in Santhively by the Sri Lankan authorities regarding the applicant's absence and that these have been ongoing since 2007. The Tribunal accepts that there is evidence that relevant authorities do monitor persons on [sic] interest, although the Tribunal found the applicant's evidence on this to be rehearsed and insincere and it has doubts that the monitoring continued to the extent claimed by the applicant. However, giving the applicant the benefit of the doubt, the Tribunal does not accept that such ongoing monitoring amounts to serious harassment or conduct amounting to persecution. Country information does confirm that the Sri Lankan authorities do monitor and conduct surveillance of people of interest and this is perhaps not surprising given the long and bitter conflict experienced by that country until 2009. Having regard to all the evidence in this case, the Tribunal is not satisfied that the applicant, who has been found by a Court not to have LTTE association, and whose profile does not fall into any of the profiles identified by the UNHCR Guidelines cited above, or within any other profile which country information might suggest would elevate his risk of targeting, would continue to be of interest such that he would be targeted for serious harm by the Sri Lankan authorities, or by any other individual or group should he return to that country now or in the reasonably foreseeable future. 36 As is apparent, the feared harm dealt with in the first section of that paragraph is the harm from "ongoing monitoring" of the appellant by the authorities. Whilst not abundantly clear, it seems to me that the Tribunal is likely to have had in mind ongoing reporting requirements to be imposed by the CID should the appellant be returned to Sri Lanka. That is somewhat confirmed by the content of the remainder of the paragraph and the Tribunal's conclusion that by reason of his profile, the appellant would not be of continuing interest to the authorities such that he would be targeted for serious harm. 37 What, however, is not dealt with at [113] of the Tribunal's reasons is the claim which the Minister concedes was made by the appellant to the effect that he feared harm as a result of his breach of the reporting conditions which had previously been imposed upon him by the CID. Whilst it can be said that the contents of [113] of the Tribunal's decision assessed whether the appellant has a well founded fear by reason of the reimposition of reporting conditions upon him should he be returned to Sri Lanka, the paragraph does not deal with a claim that punishment or retribution may be inflicted upon the appellant by reason of his breach of the reporting conditions which he was subjected to before he left Sri Lanka. 38 Nor, in my view, is that matter dealt with by paragraph [125] of the Tribunal's decision, which is the paragraph the primary judge relied upon as demonstrating that the appellant's claim was considered. This is the second aspect of the primary judge's approach with which I disagree. With respect to the primary judge, read in the context of the preceding paragraph and given the subject matter identified by its opening sentence, it seems to me that in substance, paragraph [125] is dealing with the appellant's general fear that he will continue to be seen as associated with the LTTE despite the charge that he was so associated having been dismissed by the Sri Lankan courts. Paragraph [125] explains the Tribunal's rejection of the appellant's contention that despite that charge having been dismissed, the CID would continue to associate him with the LTTE. 39 I appreciate that the Tribunal does at [125] go on to state that "[b]ased on the Tribunal's findings as to the [sic] all of the applicant's circumstances, the Tribunal is not satisfied the CID have an intention to target the applicant for harm as claimed, or in any way". However, that broad conclusion begs the question as to what were "the applicant's circumstances" that the Tribunal had in mind. To that point of the Tribunal's reasons, the reasons do not reveal an appreciation by the Tribunal that the breach of the appellant's reporting conditions was a circumstance in respect of which the appellant feared punishment or retribution. A finding in respect to the issue of reporting conditions being imposed on the appellant is only later made by the Tribunal (at [127]). 40 In contrast with the approach of the primary judge, it is [127] (rather than [125]) which the Minister primarily relied upon as demonstrating that the Tribunal did deal with and did reject the CID threat and reporting breach claim. Paragraph [127] is in the following terms: The applicant claimed that he was released from detention on condition that he report to CID every Sunday and he was told to collect information about LTTE activities. The Tribunal accepts he may have been asked to inform on LTTE activities, but it does not accept that the applicant would continue to now be regarded by the CID, or anyone, as someone who holds relevant or important information as to LTTE activities or that he should be targeted for harm for holding such information. 41 Whilst the Tribunal here seemed to have accepted the appellant's allegation that the reporting obligations were imposed on him, the feared consequences of the breach of those obligations is not dealt with. What seems to be rejected is the idea that the CID would have a continuing interest in the appellant as an informer on the activities of the LTTE should the appellant be returned to Sri Lanka. 42 Like [113], the content of [127] seems to be focused upon the potential interest that the CID may have in the appellant by reason of future activities in which the appellant may be required to engage in on return to Sri Lanka, rather than the extant interest the CID may have in the appellant by reason of his past conduct and, specifically, his alleged past breach of the extra-judicial imposition upon him of reporting requirements and the threat that he would be killed or be falsely accused if he failed to inform in accordance with those requirements. 43 It is of significance in assessing whether the Tribunal considered the CID threat and reporting breach claim to observe that the Tribunal did not make any findings as to the following matters which were material to the appellant's claim: whether the reporting conditions were breached by the appellant; whether Thumintha threatened the appellant that he would be killed or falsely accused if he failed to provide the CID with information on LTTE activities; whether as a result of that threat and from about late 2011 until March 2012, the appellant went into hiding; or whether the CID had made repeated visits to the appellant's family home regarding his absence and his failure to comply with his reporting requirements. 44 It is also relevant to observe that although the summary of the Tribunal's hearing given in the Tribunal's reasons at [26]-[55] does record one exchange during the hearing where the appellant's fear of persecution "because he escaped and because he stopped reporting to the CID" was expressed by him, that reference (at [49]) is the only reference made by the Tribunal to that fear. That is so, despite the fact that the transcript of the hearing shows that the appellant (directly or through his agent) made either a specific or apparent reference to such a fear in answer to some six questions posed by the Tribunal. Whilst each of those exchanges is referred to in the Tribunal's reasons, the summary given by the Tribunal of those exchanges does not record the fear expressed by the appellant relating to the CID threat and reporting breach claim. 45 The absence of findings in the Tribunal's reasons about material questions of fact relevant to the CID threat and reporting breach claim leads to the inference that the Tribunal did not address that claim: MZYTS at [52]. That is particularly so in the context of the obligation imposed upon the Tribunal by s 430 of the Migration Act to set out in its reasons the findings it has made. As Gaudron J said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [44]: It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. See further MZYTS at [59]. 46 Like the circumstances of the claim considered in MZYTS, if the appellant's fear of punishment or retribution for having breached the reporting conditions imposed upon him had been considered, "one could expect that it would be referred to, even if were then rejected": MZYTS at [52]. 47 As Kenny, Griffiths and Mortimer JJ went on to say in MZYTS at [62], in a passage that has equal application to the facts of this case: The absence of these matters from the reasons, combined with the centrality of them to the visa applicant's claimed fear of persecution as clearly articulated to the Tribunal…allow us comfortably to infer that the Tribunal did not consider these matters, or consider these matters material to the task of asking whether or not the visa applicant had a well-founded fear of persecution… The absence of these matters from the reasons allows, as Yusuf recognises could be the case, a conclusion of error on judicial review. 48 In my view, the Tribunal's reasons, read as a whole, do not "disclose any consciousness" (MZYTS at [62]) of the particular fear of the CID that the CID threat and reporting breach claim raised. The primary judge should have but failed to conclude that the Tribunal did not give any "real or active" (MZYTS at [39]) consideration to that claim. For that reason, the primary judge failed to identify jurisdictional error made by the Tribunal. That error affected the Tribunal's performance of the task required of it by s 36(2)(a) of the Migration Act. Accordingly, the appellant should succeed in relation to particular 1.1 of Ground 1 of the appellant's Notice of Appeal. It is not necessary that I consider whether the failure of the Tribunal to consider the CID threat and reporting breach claim also led to the miscarriage of the task required of the Tribunal by s 36(2)(aa) of the Migration Act which was, in substance, the allegation made by particular 3.1(1) of Ground 3 of the Notice of Appeal. 49 It follows that I should allow the appeal, set aside the orders made by the primary judge, quash the decision of the Tribunal and remit to the Tribunal the appellant's application for a protection visa. The first respondent should pay the appellant's costs of the appeal and of the proceeding in the Federal Circuit Court. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

MZZKA v Minister for Immigration and Border Protection

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