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[2014] FCA 1284
Federal Court of Australia
2014-11-17
Mr P, North J, Rares J
Original judgment source is linked above.
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).
The trial judge's decision 18 Her Honour, in a careful judgment, dealt with the substantive complaint in the Court below that the Tribunal had committed a jurisdictional error in failing to deal with the relevant integer of the appellant's claim that shopkeepers who had signed the book in the appellant's village had begun disappearing in August or September 2011 as a result of Mathan's having become an informer against them and that he was at risk similarly because he had also signed the book. Her Honour found that, in considering whether the appellant met the criteria in s 36(2)(a) or (aa), the Tribunal was not required to set out once again, with respect to the complementary protection ground, all of the findings it had made in rejecting the appellant's claim for refugee status. 19 Her Honour said that, on a proper reading of the Tribunal's reasons, it had found that the appellant had not made out his claim about the shopkeepers disappearing from his village. She found that the Tribunal had considered that claim and dealt with it by expressing itself in terms that were based on more general matters as to disappearances than just the specific claim.
The appellant's submissions on appeal 20 The appellant repeated the argument before me that, in essence, the jurisdictional error which the Tribunal made was to fail to assess his claims under s 36(2)(a) and (aa) in relation to his claimed fear arising from the disappearance in August or September 2011 of shopkeepers in his village because of the information provided by Mathan and that, because they and he had signed a book acknowledging their training by the LTTE, he would be at risk of persecution or serious harm were he returned to Sri Lanka. The appellant argued that it was necessary for the Tribunal specifically to refer in its reasons to that claim and to dismiss it, and that its failure to do so demonstrated that it had committed a jurisdictional error by not dealing with a clearly articulated claim in the sense identified in authorities such as Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ.
Consideration 21 The reasons of an administration decision-maker, such as the Tribunal, are not to be construed minutely and finely with an eye keenly attuned to the perception of error; rather, those reasons are meant to inform and are not to be scrutinised on over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. The Court must be mindful, in reviewing a decision upon refugee status or complementary protection claims, of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. 22 In my opinion, the Tribunal's reasons demonstrated that it understood that the appellant had made a claim that Mathan was associated with training persons for the LTTE, had become an informer for the authorities and had passed on to the authorities the appellant's name as a person involved with that training. After it had accepted that the appellant's name might have been passed on to the authorities, the Tribunal went on to make the finding at [94], that I have quoted above, that it was not satisfied that the appellant would be at risk of being treated in the same way as other shopkeepers in his village who may have disappeared in August or September 2011. 23 The appellant's migration adviser's written submissions to the Tribunal had referred to country information in general terms as supporting his claims that persons had disappeared in Sri Lanka following the conclusion of the civil war. When the Tribunal accepted that that had happened in [94] of its reasons, I am satisfied that, on a fair reading, it was dealing there with the appellant's specific, as well as his general, claims of disappearances, as part of its finding when it found that he would not face a real chance of being targeted for such mistreatment. 24 For those reasons, I am of opinion that, while I would allow ground 4 to be included in the notice of appeal because it raises, in effect, a point of law only, for which the Minister could not suggest any prejudice, both it and ground 1 are without substance and must be rejected. 25 That leaves the proposed new ground 7 for consideration. In SZTBE v Minister for Immigration and Border Protection [2014] FCA 1230 at [18]-[20], I discussed the principles applicable to the conduct of appeals. As I have noted, North J's decision in WZAPN [2014] FCA 947 was given only after her Honour delivered her reasons on 11 July 2014. The appellant needs leave to raise this ground, which was not argued before her Honour. 26 The appellant also relied on a decision given by Gilmour J in Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292. That decision was based on country information relating to returned asylum seekers to Sri Lanka in 2011. There, his Honour held that there could not be any room to doubt that, upon arrival in Sri Lanka, SZQPA would assume a risk profile as a person suspected of having links with the LTTE and that the independent merits reviewer in that case had failed properly to consider the risk that he may have become subject to persecution were he returned to Sri Lanka by reason of that profile. His Honour had held earlier at [45] that the reviewer had failed to ask himself the question whether SZQPA's claims and the country information before him demonstrated that SZQPA was at risk of serious harm from State authorities by reason of an imputed political opinion if he had been suspected of having links or an association with the LTTE. The country information in SZQPA (2012) ALD 292 was substantively different to the country information which was before the Tribunal when it dealt with the appellant's claims. The facts of that case are clearly different to those here and I do not find that decision to be of assistance to the resolution of this appeal. 27 In this case, the Tribunal made findings that, although the appellant might be questioned on his return to Sri Lanka as a person who had illegally departed the country and might also be prosecuted, the application of Sri Lankan law occurred in a way that was not discriminatory and did not amount to persecution. It found that, at the airport, "in the circumstances" (which included the questioning that might take place to establish grounds for suspecting that the appellant had departed the country illegally on his return), the prospect of the appellant being convicted and facing a fine when he returned to Sri Lanka did not amount to serious harm within the meaning of s 91R(2)(a), that was, relevantly, a threat to his liberty. 28 The Tribunal also found that there was no real chance that the appellant would face serious harm amounting to persecution by reason of returning to Sri Lanka as a failed asylum seeker. It found that the appellant might be subject to prosecution under a law of general application in Sri Lanka and that, based on the country information, the application of that law occurred in a way that was not discriminatory and did not amount to persecution. 29 Those were factual findings within the remit of the Tribunal and ones which it was required to make under the Act, that distinguish its decision from the situation discussed in WZAPN [2014] FCA 947. For those reasons, I am of opinion that the proposed ground 7 has no substance. 30 I refuse leave to amend the notice of appeal to add ground 7.
Conclusion 31 In my opinion, the appeal should be dismissed. 32 The Minister relied on an affidavit of Natasha Blake affirmed today. She is a lawyer employed by the solicitors engaged by the Minister in these proceedings. Ms Blake indicated that the solicitor/client costs incurred by the Minister were $2,045. She anticipated that counsel's fees will amount to $1830 and that further professional costs of about $350 will be incurred in relation to today's hearing and its result. In those circumstances, the Minister seeks that costs be assessed and fixed in the sum of $3,620 pursuant to s 43(3)(d) of the Federal Court Australia Act 1976 (Cth). The appellant did not make any submissions that this would not be an appropriate sum in all of the circumstances. I will so order. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
SZSSA
Minister for Immigration and Border Protection