SZSYE v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The appellant is a citizen of Sri Lanka. He first arrived in Australia on 17 May 2012. He applied for a Protection (Class XA) visa (Protection visa) on 22 August 2012. This is an appeal from a decision of the Federal Circuit Court of Australia, published as SZSYE v Minister for Immigration and Border Protection [2015] FCCA 433. By that judgment, a judge of the Federal Circuit Court (primary judge) dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 22 May 2013, affirming the decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Protection visa. 2 The task of the primary judge was to determine, by reference to the appellant's grounds of appeal, whether the decision of the Tribunal was affected by jurisdictional error. My task, by reference to the appellant's Notice of Appeal filed in this Court, is to determine whether the judgment of the primary judge is affected by any appellable error. The appellant's Notice of Appeal filed in this Court is brief. It contains a single ground of appeal, as follows: I stated my grounds of appeal and the particulars in my Amended Application of my federal circuit court filed and served. 3 The appellant is not legally represented. It is apparent from the appellant's ground of appeal that what, in truth, the appellant seeks to do is re-agitate the grounds of appeal that were agitated before the primary judge. Whilst the Minister identified the inadequacy of the Notice of Appeal, the Minister accepts that the ground of appeal raised in this Court may be treated as an allegation by the appellant that, in rejecting each of the grounds raised before the Federal Circuit Court, the primary judge erred by failing to identify jurisdictional error in the decision of the Tribunal. I intend to proceed on that basis. 4 The grounds advanced before the primary judge are set out at [3] of the primary judge's reasons for judgment. There are four grounds and they are as follows: Ground 1 The Tribunal stated (CB 201, RRT decision at p16 at [46]) "… The only clear evidence before the Tribunal is that Kumar was a Tamil businessman in Mullaitivu who was abducted in in December 2011 by unknown men in white van. …". The Tribunal committed jurisdictional error by conflating the issues about the end of war with LTTE and / or is or affected by illogicality. Particulars The Tribunal considered that the LTTE was defeated 18 months prior to December 2011 (CB 205, RRT decision at p20 at [57]) and thus the event has not occurred. The Tribunal's finding is illogical in that the two events are independent events. Ground 2 The Tribunal committed jurisdictional error when it failed to properly assess that the Applicant would be in foreseeable future and / or made finding in the absence of the evidence. Particulars The Tribunal did not properly assess the issue whether there was risk that there would be loss of liberty having found that there would be deprivation of liberty (CB 209.RRT decision at p24 at [71]) but failed to address whether there was foreseeability of future deprivation of liberty. The Tribunal further committed jurisdictional error when it found that the Applicant is likely to be detained for 4 days (at [81]) (relying on material at (CB 225 277; RRT decision at p40-42 at [122]-[126]) when the material considered one situation and is not evidence that Applicant is likely to be detained for 4 days only. Ground 3 The Tribunal erred in the interpretation of s 91R and the serious harm that the Applicant is likely to suffer. Particulars The Tribunal found that there would be deprivation of liberty (CB 209; RRT decision at p24 at [71]) but considered that considered that such deprivation of liberty did not constitute serious harm. The Applicant contends that the Tribunal has committed jurisdictional error and has misconstrued s 91R in conjunction with the definition of s 5(1) of "cruel or inhuman treatment or punishment" and erred in the interpretation of s 91R of the Act. The Applicant contends that the harm is serious nature to fall within s 91R as interpreted under the Act. Ground 4 The Tribunal committed jurisdictional error in its consideration of complementary protection under ss 36(2)(aa); 36(2A) when it failed to consider the Applicant's claim that would he would suffer serious harm upon being returned to Sri Lanka from certain Sinhalese persons. Particulars The Applicant had claimed specific threat from the Sinhalese persons [crew] (CB 13-16) throughout the journey [as per entry interview] and on Christmas Island and identified certain persons. The Tribunal found that on the basis that after some time the Applicant did not know the whereabouts of the crew there would be no harm (CB 203 at [52]; CB 209 at [71]). The Tribunal fell into error when it failed to consider whether the Applicant is likely to suffer harm upon return to Sri Lanka. The Tribunal misdirected its enquires. The finding was not based on evidence. (errors and emphasis as in original) 5 For ease of reference, and in light of what I have said at [3] above as to the form of the appellant's Notice of Appeal, I will refer to these four grounds as though they were grounds of appeal before me. 6 By way of introduction, it is necessary to set out in overview some of the background facts. An overview is given at [2] of the Tribunal's reasons for decision. As is there stated: The applicant arrived in Australia by boat without a visa on 17 May 2012 and claimed that his safety and liberty would be in danger if he was returned to Sri Lanka. He claims that he is Tamil and was born in the Badulla district of UVA province of south eastern Sri Lanka in June 1980. In 2008 he moved to the west coast and began to reside in Udappu and worked as a truck driver for a seafood business in Mullaitivu owned by a wealthy Tamil man. He claims that in late 2011 his boss was abducted in Mullaitivu by armed men in a white van and that a month later he was also abducted by armed men in a white van from his home in Udappu. He managed to escape from the men and went into hiding before leaving Sri Lanka by boat without the knowledge of the government. He claims that unknown men have been back to his house looking for him on a number of occasions. 7 With the assistance of a migration agent, the appellant submitted to a delegate of the Minister that he had a well-founded fear of persecution because of his Tamil ethnicity, his actual/imputed/perceived political opinion including of being an actual/perceived sympathiser/supporter of the LTTE, or as being against the Sri Lankan government due to his employer's perceived support of the LTTE, or because of his membership of the particular social group of Tamil men returning to Sri Lanka as failed asylum seekers. 8 The Minister's delegate rejected the appellant's application for a Protection visa. The delegate accepted that the appellant had worked as a truck driver as he had claimed. Whilst the delegate indicated that she was prepared to accept that the appellant's boss had been abducted, the delegate did not accept that the appellant had been abducted and found that the appellant had fabricated the claim to enhance his protection claim. The delegate did not accept that the appellant was of any interest to the Sri Lankan Army or the government of Sri Lanka, and found that, while he might be questioned by the authorities on his return, there was no reason to think he would be at risk of serious harm as he did not have a profile as a person of concern to the authorities. 9 The appellant sought review before the Tribunal. The Tribunal conducted a hearing on two separate occasions and received submissions from the appellant. I will deal more specifically with some of the findings made by the Tribunal as I address each of the grounds of appeal. It is helpful at the outset, however, to identify that the Tribunal found that the appellant was not a reliable witness. To summarise what was said by the Tribunal at [35] of its reasons, the Tribunal found that the appellant was an unreliable witness who was prepared to provide untruthful evidence to enhance his claims. He had provided contradictory and inconsistent evidence relating to a number of aspects of his main claims and the Tribunal formed the view that he was prepared to exaggerate and embellish his evidence when necessary. 10 Whilst the Tribunal was prepared to accept that the appellant, as a result of his situation, had been under great stress, the Tribunal did not consider that that matter provided a satisfactory explanation for the significant inconsistencies in the appellant's evidence. In light of that, the Tribunal did not accept key aspects of the appellant's account of what occurred to him in Sri Lanka and the reasons he left and fears returning.

Ground 1 11 Relevant to this ground is the appellant's claim to fear persecution in Sri Lanka by reason of his Tamil ethnicity and imputed pro-LTTE political opinion. Part of the rationale advanced by the appellant in support of that claim was that he had worked as a truck driver for a wealthy Tamil businessman (Kumar). He claimed that Kumar had been abducted by the Sri Lankan Army (SLA) because the SLA suspected that Kumar was a supporter of the LTTE. The appellant had claimed that he suspected that the SLA thought that he was smuggling weapons in trucks owned by Kumar. 12 In essence, the ground challenges the Tribunal's finding made rejecting the appellant's claim that Kumar was abducted by the SLA, including by reason of any suspicion that Kumar had past involvement with the LTTE. That finding is, in part, contained in [46] of the Tribunal's reasons which, relevantly, states as follows: However, having found that the applicant was an unreliable witness who was prepared to fabricate and embellish his evidence to enhance his claims, the Tribunal has no confidence in accepting his evidence about his suspicions about the SLA and the LTTE. The only clear evidence before the Tribunal is that Kumar was a Tamil businessman in Mullaitivu who was abducted in late December 2011 by unknown men in a white van. Considering the abduction occurred more than two and a half years after the LTTE was last active in Sri Lanka, on the evidence before it, the Tribunal is not prepared to accept that Kumar was abducted by the SLA as the applicant claimed, or that Kumar had any past involvement with the LTTE or that the GoSL [Government of Sri Lanka] perceived that Kumar had an association with the LTTE or that the GoSL perceived that Kumar had an association with the LTTE on the basis that he was a rich Tamil businessman or that the reason for his abduction was his past involvement with the LTTE. 13 Additionally, at [57] of its reasons, the Tribunal said: The applicant claimed that his association to Kumar would be a reason why the GoSL would suspect him of being or having been involved with the LTTE. However, as noted above, the Tribunal does not accept on the evidence before it that Kumar was abducted by the SLA, or that Kumar had any association with the LTTE or that the GoSL perceived him as having such an association or that the reason Kumar was abducted was because he had a connection to the LTTE. In any event, as was put to the applicant at the second hearing, it is difficult to understand why the applicant would be suspected of having had an involvement with the LTTE through his work with Kumar when that work commenced more than 18 months after the LTTE was defeated. In this context, as noted above, the Tribunal considers that his (untrue) evidence at the first hearing that he started work with Kumar in April or May 2009 was an attempt to make it seem more plausible that he could have been suspected of having had a link to the LTTE with his work for Kumar. Having carefully considered [all] of the evidence before it, for all of the above reasons, the Tribunal does not accept that the GoSL authorities would, in the reasonably foreseeable future, suspect the applicant of having a connection to the LTTE because of his work with Kumar between December 2010 and December 2011. 14 It can be seen from the paragraphs set out above that the Tribunal accepted that Kumar had been abducted, but did not accept that Kumar had been abducted by the SLA or that the abduction had anything to do with perceived support for the LTTE. Primarily, that non-acceptance was based on the Tribunal not accepting the appellant's evidence that he had been told those facts by a young man (see at [46]). 15 Ground 1, in essence, seems to assert that the Tribunal had conflated two issues, the first issue being the abduction of Kumar, and the second issue being the end of the war with the LTTE. It asserts that the Tribunal's consideration of the fact that the LTTE was defeated 18 months prior to December 2011 was illogical in that "the two events" (which I take to be a reference to the abduction on the one hand and the end of the war on the other) are "independent events." It is to be observed that the reference made in the particulars to ground 1 to the period of 18 months is taken from [57] of the reasons of the Tribunal. The reference to 18 months was there made as being the period between when the LTTE was defeated and when the appellant commenced work for Kumar. The Tribunal's more pertinent finding is that which was made at [46] of the Tribunal's reasons. There, in coming to the view that it was not prepared to accept that Kumar was abducted by the SLA, the Tribunal took into consideration that the abduction had occurred more than two and a half years after the LTTE was last active in Sri Lanka. 16 Two things may be said about that. Firstly, as the primary judge observed at [12] of the primary judge's reasons for judgment, the duration of the period during which the LTTE had been inactive was only part of the Tribunal's analysis in relation to the abduction. Secondly, it seems to me that there is a rational connection between when the LTTE ceased to be active and the question of whether or not Kumar was abducted by the SLA on suspicion of being involved with the LTTE. 17 The primary judge rejected the appellant's claim of illogicality. I am unable to discern any error in that conclusion. For those reasons ground 1 should be rejected.

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