SZSNZ v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal against an order made by the Federal Circuit Court of Australia (the Federal Circuit Court) on 20 August 2015 dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). On 3 January 2013, the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant to the appellant a protection visa. 2 In the notice of appeal, two grounds are raised as follows: 1. At [66-67] His Honour erred when he found that Tribunal did not fail to make a relevant consideration as to what constituted significant harm. Particulars a) At [75-76] The Tribunal failed to consider whether the enactment of the Immigrants & Emigrants Act by the Sri Lankan Parliament constituted an act for the purposes of the definition of degrading punishment or treatment in s5(1) of the Act. 2. His Honour erred in concluding that the Tribunal correctly referred to relevant country information to come to its conclusions. Particulars a) At [67] His Honour said "the Tribunal referred to relevant country information" yet in [51 and following] of the Tribunal's decision, it relied upon the UNHCR guidelines of 21 December 2012 which is dated after the interview. The applicant was not advised of its use after the interview and therefore that report not put to him for comment. This was not procedurally fair and is not "relevant country information" as a consequence. 3 Neither of these grounds were raised before the Federal Circuit Court. The grounds put before the Federal Circuit Court are set out at [15] of its reasons for judgment. There were seven grounds put before the Federal Circuit Court. After detailed consideration of each ground, the Federal Circuit Court concluded that no jurisdictional error had been established, with the consequence that the application for judicial review was dismissed. Insofar as the appellant continues to rely upon the grounds set out in the notice of appeal, those grounds should also be rejected for the reasons set out in the Minister's outline of submissions. 4 As to ground 1, there is confusion between the ground and the particulars. Leaving that confusion aside, however, it is apparent that no error was made by the Federal Circuit Court at [66] and [67] of its reasons for judgment. Otherwise, to the extent that it is said that the Tribunal erred at [75] and [76] of its reasons by not considering whether the Immigrants & Emigrants Act of the Sri Lankan Parliament constituted an act for the purposes of the definition of degrading treatment or punishment in s 5(1) of the Migration Act 1958 (Cth) (the Migration Act), the argument should be rejected. 5 First, no such argument appears to have been put to the Tribunal. Second, the argument that was put to the Tribunal about the consequences for the appellant if he has to return to Sri Lanka were considered by the Tribunal and were found not to give rise to any real risk that the appellant would suffer significant harm. Third, an argument to the same effect was rejected in decisions of this Court in AGH15 v Minister for Immigration and Border Protection [2015] FCA 1181 and AIY15 v Minister for Immigration and Border Protection [2015] FCA 1180, and the grounds upon which Perry J relied in those matters to dismiss the argument are also applicable here. 6 Insofar as the appellant relied upon appeal ground 2, which relates to the Tribunal's reliance on certain country information, the ground must also be rejected for the reason given in the Minister's submissions, namely, that the Tribunal was not required to give particulars of the country information because it was not specifically about the appellant but was just about a class of persons of which the appellant is a member (see s 424A(3)(a) of the Migration Act). 7 In written submissions filed on his behalf, the appellant raised another ground. It was said to relate to ground 1 in the notice of appeal but is in fact a fresh ground. This ground was not raised before the Federal Circuit Court. It is that the Tribunal misunderstood the appellant's claim by treating his evidence as relevant to a fear of persecution of army soldiers but not as a discrete claim of fear of persecution by government authorities. If such claim was made to the Tribunal, which is unclear, then in any event it is apparent that the Tribunal considered that issue. This is apparent from [66] and [74] of the Tribunal's reasons which disclose that the Tribunal's consideration extended beyond the Sri Lankan army to Sri Lankan government authorities generally. 8 During oral submissions, the appellant raised another new ground. This was to the effect that he could not present his case fully during the Tribunal's hearing as his father had died some time earlier and he was consequently distressed. He said that the hearing stopped half-way through because he was upset. The Tribunal refers to the death of the appellant's father at [66] of its reasons. However, it also records that the appellant was represented by a registered migration agent at the hearing before the Tribunal at [24] of its reasons. At [67] the Tribunal also said this: [67] In making these findings the Tribunal acknowledges the agent's submissions regarding that applicant's mental health and the impact on his ability to give evidence. However, the Tribunal finds that the applicant engaged during the hearing, appeared to understand the questions put to him, and the contradictions in his evidence that were raised by the Tribunal. He also attended the hearing on time, made eye contact with the member, and did not raise any issues regarding the interpretation or any other hindrance to his giving evidence. Therefore, based on the evidence before it, and the lack of any supporting medical evidence to the contrary, the Tribunal finds that the applicant was able to meaningfully participate in the hearing by giving evidence and presenting arguments in spite of any alleged issues with his mental health. 9 These observations of the Tribunal are inconsistent with the appellant's claim that he could not present his case effectively during the Tribunal hearing. They are also inconsistent with his claim that the hearing stopped half-way through. Further, this claim was not raised before the Federal Circuit Court. There was not in evidence before the Federal Circuit Court a copy of the transcript of the hearing before the Tribunal (see SZSNZ v Minister for Immigration & Anor [2015] FCCA 2257 at [30]) nor was a transcript put in evidence during this hearing. It follows that there is no evidence to support this claim of the appellant. 10 Otherwise, in oral submissions, the appellant said that, while the country information on which the Tribunal relied indicated that there was no problem in Sri Lanka, in fact, there continued to be problems, particularly for a person who is a Tamil such as the appellant, including people being put in prison and tortured. This claim of the appellant was put to the Tribunal as recorded, for example, at [48] of the Tribunal's reasons. It was also, in substance, raised in the application to the Federal Circuit Court, for example, in [6] and [7] of the grounds of the application before the Federal Circuit Court. As the Federal Circuit Court held at [66] of its reasons, the evaluation of country information and the weight to be assigned to it was a matter for the Tribunal. 11 There is no legal error apparent in the way in which the Tribunal dealt with the risk of harm to the appellant if he were to return to Sri Lanka or its reliance on the available country information for that purpose. 12 For these reasons, the appellant has not established any error in the decision of the Federal Circuit Court. It follows that the appeal to this Court must be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.