SZTDB v Minister for Immigration and Border Protection

Federal Court of Australia|2015-08-31|Before: Katzmann J

The application to the Federal Circuit Court 22 The grounds listed in the applicant's amended show cause application were (without alteration): 1. The correct test under the Migration Act for the Complementary Protection was not correctly applied when the RRT found that I may be subjected to questioning by the police on my return or fined or even jailed for a period. 2. The main element of claim that I would be detained and abused on my arrival was not correctly dealt. 3. The RRT did not provide me all of the evidence on which it rejected my case for my comments 4. The RRT's reasons for rejecting my case are not supported by evidence.

The appeal 23 The notice of appeal in this Court merely repeated the grounds in the amended application in the court below.

Did the primary judge fall into error? 31 An appeal to this Court from the Federal Circuit Court is in the nature of a rehearing. It is not a new hearing. To succeed, the appellant must show that the primary judge fell into error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11]. The appellant was unable to identify any error on her Honour's part and neither am I.

Ground 1: Was the test for complementary protection correctly applied? 32 For the reasons given by the primary judge, the Tribunal applied the correct test for complementary protection and committed no jurisdictional error in its application of the test. Its conclusion on the question whether, as a necessary and foreseeable consequence of the appellant's removal from Australia to Sri Lanka, there was a real risk the appellant would suffer significant harm was open on the evidence and other material before it. 33 The appellant's complaint was that, although the Tribunal recognised he might be imprisoned if he returned to Sri Lanka, it considered he would only be held on remand and then released. His contention was that there was no guarantee he would be released. For this reason, he submitted, it was unreasonable for the Tribunal not to have found that, as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka, there was a real risk he would suffer significant harm. 34 No ground of unreasonableness was pleaded. In any case, I am not satisfied that any of the circumstances which might be said to lead to a conclusion that the Tribunal's decision was unreasonable in a legal sense are present here. The decision was based on findings or inferences of fact supported by logical grounds: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [37]-[38] (Gummow and Hayne JJ). More than one conclusion was open on the evidence: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan and Bell JJ). 35 The appellant submitted that, absent a guarantee, the Tribunal was required as a matter of law to grant him a protection visa. That submission must be rejected. The Act imposes no such requirement either expressly or implicitly.

Ground 2: Did the Tribunal correctly deal with the main element of the appellant's claim that he would be detained and abused on arrival (in Sri Lanka)? 36 Presumably this was the ground the Minister originally apprehended may have raised the issue at the heart of WZAPN. 37 In WZAPN an Independent Merits Reviewer ("IMR") had accepted that, if the applicant, a stateless Kurd from Iran, were to return to Iran, there was a real chance that in the reasonably foreseeable future he would be periodically questioned and probably detained for short periods when he failed to produce identification. However, the IMR did not accept that the frequency or length of detention, or the treatment the applicant would receive whilst in detention would involve serious harm within the meaning of the Act. 38 Section 91R of the Act relevantly stated: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (Original emphasis.) 39 In WZAPN North J held that the IMR had fallen into jurisdictional error by making a qualitative assessment of the nature of the harm caused by the detention. 40 In WZARV v Minister for Immigration and Border Protection [2014] FCA 894 the IMR accepted that it was likely the applicant, another Sri Lankan national, would be interviewed by Sri Lankan authorities at the airport on his return but said it was usual for such questioning to be completed within hours. McKerracher J dismissed an appeal from the Federal Circuit Court which had held that the reasoning of the IMR was open on the facts. 41 After North J's judgment in WZAPN was published, WZARV applied for special leave to appeal on the ground that, on North J's construction of s 91R(2)(a), the IMR had erred in finding that he would not face "serious harm" if he returned to Sri Lanka. 42 The High Court granted special leave in both matters. Subsequently, it allowed the Minister's appeal in WZAPN and dismissed the appeal by WZARV. In summary, it held that, North J had erred in WZAPN and there is a qualitative element to the assessment of the threat to the person's life or liberty within the meaning of s 91R(2)(a). At [71] the plurality stated: It is persecution, involving serious harm inflicted by the violation of fundamental rights and freedoms, from which the Convention and s 91R of the Act are concerned to provide asylum. Both the Convention and s 91R of the Act embody an approach which is concerned with the effects of actions upon persons in terms of harm to them. That approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence. 43 Gageler J agreed, adding some observations of his own. At [98] his Honour said that each of the instances of serious harm set out in paras (a)-(f) of s 91R(2) "is to be read as referring to a category of detriment or disadvantage of a severity that the person threatened cannot be expected to tolerate.". 44 As it transpired, however, the question raised in these cases was not agitated by the appellant in the present case. 45 Before the primary judge the appellant merely took issue with the Tribunal's decision on the merits. Before this Court, the appellant submitted that the Tribunal did not address his claim that he would be tortured if he were to return to Sri Lanka. Torture would certainly amount to serious harm within the meaning of s 91R(2). It would also amount to significant harm for the purpose of the complementary protection criterion. For this purpose torture has a defined meaning. It is defined in s 5(1) as: an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person: (a) for the purpose of obtaining from the person or from a third person information or a confession; or (b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or (c) for the purpose of intimidating or coercing the person or a third person; or (d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or (e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant; (f) but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 46 Neither in his visa application nor in the statutory declaration accompanying the application did the appellant claim that he would be tortured if he returned to Sri Lanka. He apparently told the delegate, however, that he feared he would be harmed and mistreated on suspicion of being a supporter of the LTTE and for fleeing Sri Lanka illegally. Moreover, the prospect of torture was certainly raised by the appellant's migration agents in their lengthy written submission to the Tribunal. At p 78 they submitted that the appellant was likely to face significant harm arising from torture should he be forced to return to Sri Lanka. The basis for that claim was outlined at p 79: The Applicant has previously been beaten and interrogated by the authorities on account of his suspected LTTE affiliations. We submit that given the ongoing reports of torture, it is likely that our client will be tortured upon his return. It is likely that the fact that the Applicant fled the country illegally and sought protection in Australia is only further going to exacerbate this. 47 No transcript or recording of the Tribunal proceeding was placed before this Court or the court below, despite directions having been made in the Federal Circuit Court that that be done if the appellant intended to rely on it. Consequently, the Court is reliant on the decision record. The appellant did not contend that the decision record was inaccurate. 48 According to [35] of the decision record, the Tribunal put to the appellant during the hearing that the country of origin information suggested that people who left Sri Lanka illegally might be held on remand and then released and fined but rarely imprisoned beyond the remand and that did not appear to be significant or serious harm. The appellant did not then raise the possibility of torture. Rather, his response was that the Tribunal "may be correct but since he had been warned not to leave they will get angry with him and they may harm him". 49 This may very well explain why the Tribunal did not expressly deal with the prospect of torture. 50 Be that as it may, the appellant's submission should be rejected. 51 First, the submission was based, in part, on an assumption that the appellant had previously been beaten by Sri Lankan authorities because of his suspected LTTE affiliations. Yet, the Tribunal did not accept that the appellant was suspected by the authorities of having LTTE affiliations or, indeed, that he had been of any interest to the authorities. 52 Secondly, a claim that the appellant would likely be tortured supported the contention that he would likely suffer serious or significant harm on his return. The Tribunal squarely considered that question and identified the kind of harm that might befall him. That harm does not conform to the ordinary meaning of torture, let alone the more limited statutory meaning. Whatever the plight of others, it is implicit, if not explicit, that the Tribunal considered and rejected the proposition that the appellant might be tortured. 53 Ground 2 should be dismissed.

Ground 3: The alleged failure to give the appellant all the evidence on which it rejected his case for his comments 54 This ground, like the previous one, was argued differently on appeal. 55 In this Court the appellant submitted only that the Tribunal did not given him the evidence it relied upon to support the proposition that he would be questioned, gaoled and then released. He described this as unfair. 56 The evidence the appellant claimed should have been given to him was the evidence to which the Tribunal referred at [58]. 57 The Tribunal's failure to provide the appellant with all the evidence upon which it relied so that he could comment upon it does not constitute a jurisdictional error. 58 First, Pt 7 Div 4 (ss 422B-429A) contains an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: Migration Act, s 422B. 59 The Tribunal was not obliged to give the appellant access to the country of origin information. The Tribunal is required in some circumstances to give an applicant clear particulars of information that would provide the reason or part of the reason for affirming the decision under review and invite him or her to comment on it: Migration Act, s 424A(1). But those circumstances do not apply to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member": see Migration Act, s 424A(3)(a). 60 Secondly, the Tribunal raised the tenor of the country information with the appellant during the hearing and gave him the chance to comment on it. 61 Thirdly, the proposition put to the appellant by the Tribunal during the hearing conformed to the extract from a Department of Foreign Affairs and Trade report which appears in the delegate's decision. Thus, it is likely that the material in question was already in the appellant's actual or constructive possession well before the Tribunal hearing. 62 Fourthly, to the extent that this ground of appeal was intended to capture more than the country of origin information and extend to the appellant's evidence, as the primary judge observed, the obligation under s 424A(1) does not apply to information given by the appellant for the purpose of the application for review or during the process that led to the decision under review unless it was information provided orally by the appellant to the Department: s 424A(3). 63 Fifthly, the evidence of the appellant to which the Tribunal referred in its reasons was also raised with the appellant at the hearing. Furthermore, the Tribunal allowed further submissions to be made about the matters that arose during the hearing. The appellant's migration agent took advantage of that opportunity, addressing various matters of concern to the Tribunal. 64 I am not satisfied that the Tribunal was obliged to provide the material upon which it relied to the appellant for his comments. There was in any event no practical unfairness that flows from any failure to do so, as the substance of the material was put to him. 65 Ground 3 should therefore be dismissed.

Ground 4: The reasons for rejecting the application were not supported by evidence 66 The appellant submitted that there was no evidence to support the Tribunal's conclusion that the only harm to which he might be subjected upon his return to Sri Lanka would be questioning by the authorities, a short period of imprisonment on remand, and a fine. 67 I have already referred to independent country information mentioned by the delegate in his reasons. At [49] of its reasons the Tribunal extracted a more recent report from the Department of Foreign Affairs and Trade which also supported its conclusion. 68 Consequently, this ground should also be dismissed.

Conclusion 69 None of the grounds of appeal is made out. There is no apparent error in the primary judge's reasons. It follows that the appeal must be dismissed. The appellant should pay the Minister's costs. There will be orders accordingly. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

REASONS FOR JUDGMENT 1 The appellant is an ethnic Tamil from Sri Lanka. He arrived at Christmas Island by a boat apparently bound for mainland Australia on 1 July 2012, presumably after the boat was intercepted and diverted to the island. 2 On 23 November 2012, with the assistance of a migration agent, he applied for a protection (class XA) visa. His application was considered by a delegate of the Minister and, following an interview with the delegate, it was refused. The applicant then applied to the Refugee Review Tribunal to have the decision reviewed. When that application failed, he lodged an application in the Federal Circuit Court asking the Minister to show cause why constitutional writs should not issue against the Minister and the Tribunal as the decision, he alleged, was affected by a number of errors. The primary judge who heard that application found against him. In this appeal the appellant maintains that the Tribunal erred as he alleged in the court below and that he is entitled to relief. 3 As the primary judge pointed out in her reasons, decisions of the Tribunal are not amenable to appeal or to judicial review, save for jurisdictional error. That is the combined effect of s 474 of the Migration Act 1958 (Cth) ("the Act"), Chapter III of the Constitution and the High Court's decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The primary judge held that the Tribunal's decision was not affected by jurisdictional error. Broadly speaking, the question on this appeal is whether her Honour was wrong to do so. 4 The appeal was originally listed for hearing on 5 November 2014. On 15 October 2014, with the consent of the appellant, the Minister approached the Court to adjourn the hearing until after the High Court had considered applications for special leave and, if leave were granted, the appeal from the judgment in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (North J) ("WZAPN"). The Minister apprehended that the appeal in the present matter was likely to raise an issue that would be resolved one way or another by the special leave application or appeal. On this basis I acceded to the parties' request and on 22 October 2014 I ordered that the hearing be vacated. On 17 June 2015 the High Court published its judgment in Minister for Immigration and Border Protection v WZAPN together with WZARV v Minister for Immigration and Border Protection [2015] HCA 22; 320 ALR 467. The following day the Minister formally notified the Court and the appeal was listed for hearing on 17 August 2015. For the reasons given below the appeal must be dismissed.

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