SZSSA v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Circuit Court dismissing the appellant's claim for Constitutional writ relief from the decision of the Refugee Review Tribunal given on 22 February 2013 that affirmed the decision of the Minister's delegate not to grant the appellant a protection visa: SZSSA v Minister for immigration and Border Protection [2014] FCCA 1482.

Background 2 The appellant is a citizen of Sri Lanka who arrived in Australia and applied for a protection visa on 29 May 2012. The delegate refused to grant that visa and the appellant applied to the Tribunal for review. 3 The appellant challenged the Tribunal's decision on three bases in the Court below, all of which focused on alleged jurisdictional errors in relation to the Tribunal's consideration of Australia's complementary protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth). Relevantly, only ground 1 on which the appellant relied below is the subject of one of his grounds of appeal in this Court. He has applied to amend his notice of appeal to raise a corresponding error by the Tribunal in its assessment of his entitlement to a protection visa under the Refugee Convention and s 36(2)(a) of the Act. 4 Substantively, the appellant claimed that the Tribunal had committed a jurisdictional error in failing to deal with all integers of his claim in relation to each of his entitlement to be recognised as a refugee or entitled to complementary protection under s 36(2)(a) or (aa). The appellant has also sought to rely on a further ground of appeal that was not the subject of any consideration in the Court below arising from the subsequent decision of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. 5 Relevantly, the facts in issue now are in a narrow compass. The appellant had lived in an area in the north-east of Sri Lanka in the district of Kilinochi, that the Tribunal accepted was a stronghold of the Liberation Tigers of Tamil Eelam, or LTTE. He claimed that, during the civil war, he had been given a month's training by the LTTE and that a person called Mathan, who had conducted the training, had been captured and released after a prolonged detention. He claimed that Mathan had become an informer for the army, giving information about the identity of persons who had been trained by the LTTE, and that Mathan would have informed the army that the appellant had undergone the one month of training in 2006 that shopkeepers and business people in his village had been required to take. The appellant claimed in his statutory declaration, supporting his application for a protection visa, that soon after Mathan had been released by the army in October 2011, people in his village who had trained with the LTTE began disappearing and that, as soon as the appellant realised what was going on, he had gone to another village and stayed with a person there until he was able to organise his trip to Australia for which he left on 2 February 2012. 6 The Tribunal recorded in the background section of its reasons that, during the hearing, it had asked the appellant to explain his claim that a few of the other shopkeepers in the area of his village had gone missing. The Tribunal recorded that the appellant told it that the mothers of those who went missing, whom he claimed were his friends, informed him that Mathan was out of detention and that the appellant should avoid him. He told the Tribunal that Mathan had gone to his friends' houses with the army and that all those that had disappeared were shopkeepers who had signed a book at an army camp in August 2008 acknowledging that they had undergone training with the LTTE. He said that the disappearances had occurred in August or September of 2011, immediately before he went into hiding. The Tribunal asked the appellant what would happen to him if he returned to Sri Lanka, and he replied that he would be questioned because the authorities knew where he came from, and that those who had signed the book like him had disappeared. 7 The Tribunal considered the extensive, and to some degree conflicting, country information relating to conditions in Sri Lanka and the changes in those conditions since the conclusion of the civil war in about May 2009. In its findings, the Tribunal concluded that the appellant was a credible witness "as to the core of his claims". It made clear that it found his evidence generally reliable, but rejected his claim to a protection visa based on the country information. It found that his claims as to the chances of his suffering future harm in Sri Lanka were not supported by the independent country information. 8 The Tribunal made a number of express findings in which it accepted the appellant's evidence that he had lived in the Kilinochi district, which was a stronghold for the LTTE, and that he had been forced to undertake basic training for a month with the LTTE but had not been engaged in combat activities on behalf of the LTTE or any other party in the conflict in the civil war. The Tribunal accepted that the appellant had not been otherwise involved or associated with the LTTE, but that he had been displaced in August 2008 during the hostilities and spent time in a detention camp at which he was questioned by the Sri Lankan Government's criminal investigation division (CID). The Tribunal accepted that the appellant may have suffered mistreatment during that questioning but that he had been released from the camp in August 2008 and returned to his village, where he began a retail textile business that he operated until he left Sri Lanka to come to Australia. 9 The Tribunal found, in accepting the appellant's claims, that: A person named Mathan who was associated with providing the training at the LTTE was arrested as claimed by the [appellant] and detained and that the [appellant] believes Mathan may have passed on the [apellant's] name as being involved with the LTTE to the Sri Lankan authorities. No evidence, other than the [appellant's] claim, has been provided to support this proposition. The Tribunal is however prepared to accept that the [appellant's] name might have been passed on to the Sri Lankan authorities as being a person who participated in LTTE training. 10 The Tribunal then made a number of critical findings. First, it recorded that its task was to determine whether in the reasonably foreseeable future the appellant faced a real chance of persecution having regard to the country information and, in particular, the Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of the United Nations High Commissioner for Refugees dated 21 December 2012. It found that the appellant was not a person who fell within one or more of the profiles that those guidelines established as being classes of persons who were vulnerable to potential persecutory treatment by the Sri Lankan authorities. Although it accepted that the guidelines were not a checklist or exhaustive, the Tribunal found that the appellant did not have a profile that exposed him to a greater risk of being targeted for harm. It did not accept his claim that he faced a real chance of serious harm for reason of being a young Tamil from the north-east of Sri Lanka. Rather, it found that, on all the country information available to it as to the then-present circumstances in Sri Lanka, the situation there had changed since the cessation of hostilities in May 2009. The Tribunal did not accept the appellant's claim that he faced serious harm because of his Tamil race or ethnicity, as a Sri Lankan Tamil, having regard to the UNHCR guidelines. 11 The Tribunal accepted that, after the appellant's release from a displacement camp in April 2010 and while he was operating his textile business in his village, the Sri Lankan authorities visited his workshop periodically to check on him. It accepted that he may have regarded that conduct as harassing and discriminatory behaviour against him, but it found that the country information that it accepted indicated that a large number of persons had been, and continued to be, kept under observation by authorities of Sri Lanka to prevent a resurgence of the LTTE and to reduce the potential for a new conflict or war. The Tribunal did not consider that that action on the part of the Sri Lankan authorities, either of itself or to cumulatively with all the other circumstances, amounted to "serious harm" for the purposes of the definition of that term in s 91R(1)(b) of the Act. 12 The Tribunal found that the appellant was not a person with, or who would be perceived as having, a profile that exhibited pro-LTTE or anti-government sentiments. It found that, although he had been questioned about his past involvement and training with the LTTE, the appellant had been released, and that indicated that the authorities were satisfied that he was not a person to be targeted, and then made the following finding at [94]: The Tribunal accepts that there are reports of disappearances in Sri Lanka, however, on the evidence before it, the Tribunal does not consider the applicant would face a real chance of being targeted for such mistreatment. The Tribunal considered the [appellant's] claim that he was questioned by the authorities with a view to obtaining an admission from him as to his membership of the LTTE movement, however, the Tribunal is not satisfied on the evidence before it that, and in particular based on the fact that he was released from the detention camp, that the authorities formed a view that he is an LTTE sympathiser with a profile requiring him to be targeted for serious harm. (emphasis added) 13 The Tribunal also found that there was a remote, and not real, chance of the appellant being targeted for reasons of any imputed political opinion arising from his race or former residence in a predominantly Tamil area of Sri Lanka. It did not accept that he held a profile that would attract persecutory treatment for his real or imputed political opinion flowing from his ethnicity or regional origin. 14 The Tribunal also considered the appellant's claim that he would be arrested at the airport in Sri Lanka because he was a Tamil from Kilinochi but did not accept that he faced a real chance of arrest should he return to Sri Lanka for reasons of being a Tamil who originated from that area. It also rejected his claim that he would be targeted for being a returned failed asylum seeker, although it accepted that returned failed asylum seekers may constitute a particular social group for the purposes of the Convention. However, the Tribunal found that, considering all of the country information that it had cited in an earlier portion of its decision, there was a difference of opinion on that matter between the various sources of country information. The Tribunal, having weighed up the conflicting information, preferred what the Home Office of the United Kingdom had concluded as to conditions for returnees who were failed asylum seekers, and found that there was not a real chance that the appellant would face serious harm amounting to persecution for reason of returning to Sri Lanka as a failed asylum seeker. 15 The Tribunal also rejected the appellant's claim that he would be seriously harmed for reason of having illegally departed Sri Lanka. It accepted that he appeared to have breached Sri Lanka's Immigration and Emigration Act 1948 in respect of his illegal departure. However, the Tribunal accepted country information, and in particular that from the Department of Foreign Affairs and Trade's advice of October 2012, that the Tribunal set out extensively at [68] of its reasons, that indicated that the appellant would be prosecuted for breach of the Immigration and Emigration Act but would receive only a fine rather than a custodial sentence. It considered that the appellant might be subject to prosecution under a law of general application in Sri Lanka but did not accept, after weighing up all the country information, that the application of that law in Sri Lanka occurred in a discriminatory way or amounted to persecution. The Tribunal accepted the country information from the Department that indicated persons who had departed illegally from Sri Lanka might be questioned and might also be prosecuted for a breach of the legislation but found that it "did not accept that in the circumstances, and if the [appellant] is convicted of a breach of the I&E Act, a penalty of a fine amounts to 'serious harm'". 16 It considered the appellant's claims singularly and cumulatively and found that it was not satisfied that, were he to return to Sri Lanka, the appellant faced a real chance of being targeted for or experiencing serious harm of the kind contemplated in s 91R(1)(b) of the Act for a Convention reason now or in the reasonably foreseeable future, and that his fear of persecution within the meaning of the Convention was not well-founded. Accordingly, the Tribunal found that the appellant did not meet the requirements for a protection visa under s 36(2)(a) of the Act. 17 The Tribunal then found that, although the appellant may have been detained and suffered mistreatment at the hands of the CID during the civil war, amounting to significant harm for the purposes of s 36(2A) of the Act, it was not satisfied that, on all the evidence, there were grounds for it to conclude that there was a real risk that he would be targeted again for significant harm. It was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Sri Lanka, there was a real risk that the appellant would suffer significant harm within the meaning of ss 5(1) and 36(2A) of the Act and, accordingly, found that the appellant did not meet the requirements for complementary protection under s 36(2)(aa).