SZTMC v Minister for Immigration and Border Protection

JUDGE: PERRY J DATE: 20 NOVEMBER 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 RELEVANT PROVISIONS OF THE MIGRATION ACT [4] 3 BACKGROUND [11] 3.1 The appellant's protection claims [11] 3.2 The decision of the Tribunal [16] 3.3 The decision of the Federal Circuit Court [25] 4 CONSIDERATION [28] 4.1 Court's jurisdiction on judicial review [28] 4.2 Grounds 1 and 2: alleged failure to consider risk of harm as a young Tamil male from Udappu/Trincomalee area of Sri Lanka [29] 4.3 Ground 2: alleged failure to consider the appellant's ability to subsist and have a livelihood if returned [33] 4.4 Ground 3: failure to look at the alleged threat and treatment from the authorities as a member of the fisherman community who are considered to have imputed political opinion [34] 4.5 Ground 5: alleged failure to squarely put that the employment letter was not genuine and a forgery [35] 4.6 Additional grounds raised in reply [38] 5 CONCLUSION [45]

1. INTRODUCTION 1 This is an appeal from the Federal Circuit Court of Australia (the Court below) dismissing an application for judicial review of a decision by the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) filed on 8 October 2014. By its decision, the Tribunal affirmed the decision of the first respondent's delegate (the delegate) refusing the grant of a Protection (Class XA) visa. 2 The primary issues raised on appeal are whether the primary judge erred in failing to find that the Tribunal: (1) failed to consider the attributes of the appellant's social group, complementary protection claims, and claims of well-founded fear; and (2) denied the appellant procedural fairness by not putting to the appellant a finding that a letter from the appellant's alleged employer was not genuine. 3 For the reasons below, I find the Court below did not err and the appeal must be dismissed.

2. RELEVANT PROVISIONS OF THE MIGRATION ACT 4 The Migration Act 1958 (Cth) (the Act) provides for the circumstances in which a person who is not a citizen of Australia (a "non-citizen") may enter and remain in Australia. Subject to certain exceptions not relevant here, a non-citizen must not travel to Australia without a visa that is in effect (s 42(1)). 5 The Act provides for different classes of visa, one of which is a protection visa under s 36. A protection visa may be granted where the criteria in s 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (the Refugee Convention). Article 1A(2) of the Refugee Convention provides, in turn, that a refugee is a person who, relevantly: …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and unable or, owing to such fear, is unwilling to available himself [or herself] of the protection of that country… 6 A fear of harm is "well-founded" for the purposes of s 36(2)(a) of the Act when there is "a real substantial basis for it", even where the chance of the object of the fear eventuating is less than 50 per cent, but it not "well-founded" if it is merely assumed or speculative: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). 7 As the appellant's protection visa application was made before 16 December 2014, the criteria in s 36(2)(a) of the Act must be read together with s 91R, which was in force at the time. That section provided that, for the purposes of the Act, Article 1A(2) of the Refugee Convention does not apply in relation to persecution for a Refugee Convention reason unless, relevantly, the persecution "involves serious harm to the person" and "systemic and discriminatory conduct". Instances of "serious harm" given in s 91R(2) include a threat to the person's life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the person's capacity to subsist, and denial of capacity to earn a livelihood of any kind where the denial threatens the person's capacity to subsist. It follows that s 91R imposes a high threshold before a fear of harm will constitute a fear of "persecution" for the purposes of s 36(2)(a) of the Act. 8 Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because she or he is not a refugee may nonetheless be entitled to protection here under other obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, done at New York on 10 December 1984, and the International Covenant on Civil and Political Rights 1966, done at New York on 16 December 1966: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at 522 [70] and 526 [100] (Lander and Gordon JJ), and 558 [300] and 560 [313] (Besanko and Jagot JJ). Specifically, under s 36(2)(aa) and subject to certain exceptions, the Minister must grant a protection visa to a non-citizen in Australia: …in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm… 9 The proper test is whether there is a "real chance" that an applicant will suffer "significant harm" if returned to her or his country of origin: SZQRB at 551 [242]-[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at 557-558 [297] and Flick J at 565 [342] relevantly agreed). Section 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm: A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 10 It is apparent from this definition that the phrase "significant harm" does not bear its ordinary and natural meaning. Its meaning is limited to that defined by s 36(2A). It is also apparent from this definition that the requirement that a person suffer significant harm imposes a high threshold.

3.1 The appellant's protection claims 11 The appellant is a citizen of Sri Lanka of Tamil ethnicity and Hindu religion. He arrived in Australia as an irregular maritime arrival on 21 May 2012 aged 18 years of age and applied for a protection visa on 23 September 2012. 12 The appellant's claims as to past events may be summarised as follows. (1) The appellant was born in Udappu in 1993 where he lived until his departure. He completed his secondary education in 2009, after which he obtained employment in December 2009 working at a farm as a prawn farmer until April 2012. (2) The appellant's father was a fisherman who often fished for a season in Trincomalee. The appellant's father regularly caught more fish than the Sinhalese as a result of which they would beat him and abuse him for being a Tamil. (3) The appellant's father was badly attacked by the Sinhalese in March 2012 and decided to return to Udappu in fear of his life. The appellant returned to see his father. Three Sinhalese came to the home and brutally attacked his father who was taken to hospital with a head wound. (4) The next day, the appellant returned to the prawn farm where he worked and was approached by some Sinhalese men who attacked him when he said that he did not know where his father was, leaving him badly bruised and swollen. (5) That night, the appellant stayed at another farm as he was too scared to return to the farm where he worked. The following day when he returned to his place of work, he found out that the Sinhalese had been asking about him and they told the workers to tell the appellant that they would be back to find him. (6) The appellant's agent submitted that the appellant then went into hiding. The Sinhalese continued to ask after the appellant's and the appellant's father's whereabouts. (7) The appellant left Sri Lanka by boat illegally, without his passport and arrived in Australia on 21 May 2012. (8) The appellant said he left Sri Lanka because he was scared for his life and had been harassed by the Sinhalese because he was a Tamil. 13 The appellant further claimed that, although the war ended in 2009, the situation for Tamils has barely improved, with Tamils being treated as second-class citizens, denied of basic rights, harassed by the authorities and the Sinhalese population, and afraid to exercise their rights for fear of punishment. He said that he fears further mental and physical persecution and harm or mistreatment if returned to Sri Lanka by both the Sinhalese and the Sri Lankan authorities due to his race and his membership of the particular social group "failed Tamil asylum seekers". He claims that the authorities will not protect him and he fears them. 14 He also claims that he would not be able to relocate elsewhere in Sri Lanka because the harassment to which Tamils are subjected is not localised in the Udappu area but happens all over Sri Lanka, and because of the difficulties he would suffer as an 18-year-old who does not speak Sinhalese and lacks contacts and networks to find employment. 15 On 14 January 2013, the delegate refused the appellant's application.

3.2 The decision of the Tribunal 16 On 14 February 2013 the appellant applied for review of the delegate's decision in the Tribunal. The appellant was represented by a migration agent who made submissions to the Tribunal on his behalf and represented him at both of the hearings held by the Tribunal. The appellant also gave evidence and presented arguments at both hearings with the assistance of an interpreter. 17 A new claim was raised in the submissions to the Tribunal that, after the delegate's decision had been made, the appellant's mother told the appellant in February 2013 that a group of Sinhalese men had come to the appellant's parent's home asking for money. The appellant's mother was fearful and reported the incident to the police who did not assist her. 18 The agent submitted that the appellant has a well-founded fear of persecution if returned to Sri Lanka on the following grounds: (1) his Tamil race; (2) his imputed political opinion against the government and pro-LTTE as he is an ethnic Tamil; (3) his membership of a particular social group consisting of failed Tamil asylum seekers; and (4) his inability to escape harm by relocation. 19 The agent also submitted that the appellant is entitled to complementary protection as there is a real risk that he will suffer significant harm as a failed Tamil asylum seeker upon return. 20 The Tribunal did not accept that the appellant was a witness of truth concerning his claims of past persecution of himself, his father or any other family member in Sri Lanka. It made these adverse credibility findings on a number of grounds including the following. (1) The Tribunal found that the appellant's lack of knowledge about prawns and prawn farming, together with inconsistencies between his evidence, on the one hand, and information advertised by, and letter of employment from, the prawn farm on the other hand, undermined his claims: to work for the prawn farm; that the letter was genuine; that he was attacked on his way to the prawn farm; and that he was assisted by his colleagues at the prawn farm in avoiding the Sinhalese who were after him. (2) The Tribunal did not find credible the appellant's evidence regarding his mother's lack of willingness to engage the police when the appellant's father was being violently attacked, despite going to the police to make a complaint after the demand for money (and claimed threats of abduction) were made. The Tribunal also had concerns regarding the appellant's evidence as to the timing of the demand for money and threats due to inconsistencies. (3) The Tribunal found that the appellant provided vague, inconsistent and changing evidence regarding the attacks on his father in his statement and at the hearing, including when his father was attacked, his father's hiding after the attack in Udappu and whether or not the appellant saw his father when he had been attacked. 21 However, the Tribunal accepted that the appellant's father is a fisherman and that, as a Tamil fisherman, he may have experienced discrimination from Sinhalese in Sri Lanka. The Tribunal also accepted that the appellant had been, as he claimed, previously harassed by Sinhalese because he was a Tamil, noting particularly the country information about harassment of Tamils during the conflict. However on the basis of its adverse credibility findings, the Tribunal did not accept that the appellant or his family had been threatened or subjected to serious harm in Sri Lanka in the past, as claimed. It followed, the Tribunal concluded, that none of the appellant's past claims gave rise to a real risk of harm upon return to Sri Lanka. 22 Against these findings, the Tribunal then turned to consider the consequences if the appellant were returned to Sri Lanka. The Tribunal was not satisfied on the basis of the country information, including that provided by the appellant's agent, that the appellant would be at risk of persecution or significant harm on return to Sri Lanka as a failed asylum seeker, as a Tamil, as a young male from Uddapu, or as the son of a fisherman. 23 In this regard, the Tribunal considered the processes that the appellant would face on return to Sri Lanka, including that he would be held, questioned and charged as he had contravened the Sri Lankan Immigrants and Emigrants Act by departing from a place other than a designated port and without his original Sri Lankan travel documents. In considering the conditions the appellant would face while being held in remand awaiting bail, the Tribunal found that as the appellant has no profile with the authorities, there is no reason for him to be held for any period other than the minimum, which was accepted by the Tribunal as being a few days. Nor did the Tribunal accept that the appellant would be harmed or subjected to serious or significant harm during the remand process. 24 The Tribunal concluded that it was not satisfied that there was a real chance that the appellant would suffer serious harm amounting to persecution for a Refugee Convention reason on his return to Sri Lanka, and was therefore not satisfied that the appellant was a refugee. Furthermore, whilst the Tribunal accepted that the appellant would likely face arrest on charges of leaving the country illegally, may be placed in remand briefly while awaiting a bail hearing, and might later be fined, the Tribunal was not satisfied that this would amount to significant harm under Australia's complementary protection obligations. The Tribunal also did not accept that the discrimination or low level of harassment the appellant might face when returning to his village would amount to significant harm. The Tribunal therefore affirmed the delegate's decision not to grant the appellant a protection visa on 18 October 2013.

3.3 The decision of the Federal Circuit Court 25 On 31 October 2013 the appellant applied for judicial review of the Tribunal's decision in the Federal Circuit Court pursuant to s 476 of the Act. 26 The grounds before the Federal Circuit Court were as follows: 1. Ground One The Tribunal made jurisdictional error as it did not properly look at all the attributes of social group. Particulars The Tribunal did not consider the characteristics of social group being young Tamil male from the particular area of part of Sri Lanka (Uddapu / Trincomalee) instead the Tribunal looked at the young male from particular region. 2. Ground Two The Tribunal made an error amounting to jurisdictional error as it did not properly look at the Applicant's complementary protection. Particulars The Tribunal did not consider my circumstances, Applicant's father's sufferings being a Tamil and the risk the Applicant would face as young Tamil male from Udappu / Trincomalee area of Sri Lanka. The Tribunal failed to consider the Applicant's ability to subsist and have a livelihood upon being returned to Sri Lanka. 3. Ground Three The Tribunal made an error in assessing my protection visa application and failed to consider the well-founded fear in my circumstances. Particulars The Tribunal did not look at the threat and treatment from the authorities as I belong to fisherman community who are considered as having imputed political opinion. (See RRT paragraph 52) … 5. Ground Five The Tribunal committed jurisdictional error in denying the Applicant procedural fairness by not putting to the Applicant the employment letter provided by the Applicant was not genuine and was a forgery. Particulars The Tribunal committed jurisdictional error by failing to squarely put to the Applicant the employment letter provided by the Applicant was not genuine and was a forgery (CB 183 at [24]). 27 The application for judicial review was dismissed on 26 September 2014. It is convenient to address the primary judge's reasons in the context of considering the grounds of appeal as the notice of appeal simply repeats the grounds of judicial review in the Court below. In this regard, I note that there is no ground 4 as that ground was abandoned in the amended application for judicial review in the Court below.

4.1 Court's jurisdiction on judicial review 28 It is important to emphasise at the outset that neither this Court nor the Court below has jurisdiction to grant the appellant a visa or to consider whether it would have made the same decision as the Tribunal to refuse to grant the appellant a visa based upon its own assessment of the evidence. The jurisdiction of the Federal Circuit Court is limited to considering whether the Tribunal's decision to refuse to grant the appellant a visa was lawfully made under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) to consider whether there is error in the decision of the Court below. As such, I am equally constrained from embarking upon a consideration of the merits of the appellant's claims to be entitled to a protection visa.

4.2 Grounds 1 and 2: alleged failure to consider risk of harm as a young Tamil male from Udappu/Trincomalee area of Sri Lanka 29 Grounds 1 and 2 concern respectively the criteria in s 36(2)(a) of the Act for a protection visa based on a claim to be a refugee, and subs (2)(aa), being a claim for complementary protection. Nonetheless, insofar as grounds 1 and 2 raise an alleged failure to consider the risk of harm faced by the appellant if returned as a young Tamil male from the Udappu/Trincomalee area of Sri Lanka, there is an overlap between these grounds, as the primary judge found. 30 The Tribunal is required to consider any claim which was expressly made or was apparent on the face of the material before the Tribunal: Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at 356 [90] (the Court); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at 18-19 [58] (the Court). A claim will not be raised in this sense where it depends "for its exposure on constructive or creative activity by the Tribunal": NABE at 19 [58]. 31 The primary judge found first that the appellant did not make an express claim that he was a member of a social group of young Tamil males from Udappu/Trincomalee. I agree. However, even assuming that the claim arose squarely on the material, the Tribunal in fact considered that claim. Specifically, the Tribunal: (1) accepted his claim that he was a young Tamil male from Udappu; (2) considered his claims based upon his ethnicity both alone and together with the other integers of his claims; and (3) rejected his claim for protection as a refugee and for complementary protection on the ground relevantly that it was not satisfied he would suffer serious harm or significant harm because he is a young Tamil male from Udappu (Tribunal reasons at [70] and [73]). 32 Given those findings, I agree with the primary judge that it was not necessary for the Tribunal to go further and consider whether there was in fact a particular social group of young Tamil males from a particular area in Sri Lanka (reasons below at [42]). It follows that neither the first ground, nor the second ground to this extent, are established.

4.3 Ground 2: alleged failure to consider the appellant's ability to subsist and have a livelihood if returned 33 In relation to the specific claim made also in ground 2 that the Tribunal failed to consider the appellant's ability to subsist and have a livelihood if returned, the primary judge correctly held in my view that the appellant did not raise any such claim before the Tribunal. However, the short point is that the Tribunal considered this claim in any event. First, the Tribunal considered whether, if the appellant was convicted of departing the country illegally, the imposition of a fine might amount to significant or serious harm and found that the evidence indicated that he would be able to afford to pay the fine (Tribunal reasons at [67]). Secondly, concerning the appellant's return to his village, the Tribunal found that he could return to live with his parents in the village and could be supported by his parents and/or obtain work himself. The Tribunal also acknowledged that there was country information about poor economic conditions and discrimination against Tamils which has continued after the end of the war. However, the Tribunal, while accepting that the appellant may be subjected to some form of discrimination or low level harassment by some people because he is a Tamil, again was not satisfied that in the current circumstances, this would amount to serious or significant harm (Tribunal reasons at [68] and [73]). It follows that there is no merit in this ground, as the primary judge held.

4.4 Ground 3: failure to look at the alleged threat and treatment from the authorities as a member of the fisherman community who are considered to have imputed political opinion 34 In relation to ground 3, I agree with the primary judge at [46] of her reasons that the Tribunal considered the appellant's specific situation and acknowledged that the migration agent had suggested to the delegate that Tamil fisherman were automatically treated as supporters of the LTTE. The Tribunal did not accept this claim and also found the appellant was not at risk due to being the son of a Tamil fisherman from Udappu. The Tribunal also considered, but rejected, the claim that the appellant's father had been suspected or harmed because of any perceived or actual connection to the LTTE. As such, there is no force in the complaint that these claims were not considered and the primary judge correctly held that ground 3 was not made out.

4.5 Ground 5: alleged failure to squarely put that the employment letter was not genuine and a forgery 35 The last ground of appeal (and review below) was that the Tribunal was in breach of procedural fairness in "failing to squarely put to the [appellant] the employment letter provided by the [appellant] was not genuine and was a forgery." The letter in question was from the prawn farm giving details of the appellant's alleged employment with the farm, including the positions held by him, and commended his work in the field of farm management. The Tribunal raised concerns with the appellant at the hearing about his apparent lack of knowledge of prawn farming, and inconsistencies between his evidence and information advertised by the prawn farm. The Tribunal's summary of his evidence in response to those concerns at [24] of its reasons included the following: When the Tribunal raised its concerns with him, he said that he just followed instructions and he didn't have to have knowledge. The Tribunal noted that this was different to the description of the applicant in the letter he provided from the [prawn farm]. The Tribunal suggested that a person of the applicant's described role and nature would have known for example about what type of prawns were being farmed. The applicant responded that he followed his instructions well. 36 The Tribunal then found that "the applicant's lack of knowledge in this instance, having regard to his ability to give evidence freely about other matters, undermines his claim that he worked for the [prawn farm] as claimed, that the letter produced is genuine; and that he was attacked on his way to the prawn farm…" (Tribunal reasons at [24]). 37 In my view, read in context, the reference in the passage quoted at [35] above to the Tribunal noting that his evidence was different from information in the letter was plainly a reference to something which the Tribunal said to the appellant and to which he therefore had the opportunity to respond. Nothing further was required of the Tribunal as a matter of procedural fairness, even if any such an obligation arose. No transcript of the hearing was led in evidence which contradicted that account of what was said at the hearing; nor was the tape of the hearing in evidence. In those circumstances, I agree with the primary judge that the appellant has failed to establish this ground.

4.6 Additional grounds raised in reply 38 In written submissions in reply the appellant raised a number of further grounds. 39 First the appellant submitted that: The RRT has not considered one of the integral aspects of my Convention Claims for a Protection Visa and/or Complementary Protection. The RRT accepted Tamils like me were at risk of persecution due to my ethnicity in the past but not now. There is evidence before the RRT to accept Tamils like me are still at risk and discrimination in Sri Lanka. 40 The short point, however, is that the Tribunal did consider this claim. Furthermore, while a failure to refer to particular evidence would not constitute a reviewable error, it is apparent that the Tribunal had regard to evidence as to the situation for Tamils generally in Sri Lanka and in the appellant's home area, including the country information to which the appellant's agent had referred which suggested that there is post-war continuing discrimination and violations of human rights of Tamils (Tribunal reasons at [53]). However, notwithstanding that evidence, the Tribunal did not accept that the appellant would be at risk of serious or significant harm. That was a finding which was open to the Tribunal. 41 Secondly, the appellant submitted that: The RRT has not considered my claim in regard to my detention on my arrival in degrading conditions for time periods of up to months in Negambo. Please refer to my RRT decision that indicates that the finding of the RRT failed to state why and how I am not eligible for Complementary Protection. Finally the RRT has failed to deal with my claim that I could be held for some days/longer in Negambo Prison (waiting for bail). This claim was not assessed and considered in the RRT decision. 42 Again, it is apparent from the Tribunal's reasons that it specifically considered whether the time which the appellant may spend in remand if charged with leaving the country unlawfully, and the conditions of that detention in the Negombo prison, might constitute serious or significant harm. However, the Tribunal concluded on the evidence at [64] that: The Tribunal accepts that if the applicant were to be kept detained for any significant period of time, then the situation might be very different for him, and the Tribunal would be very concerned that he may be subjected to treatment approaching the level of serious or significant harm. However, the Tribunal considers that the applicant would only be held on remand for the minimum period of time and it is not satisfied that there is a real chance (or risk) that the situation will be otherwise. (See also the Tribunal's reasons at [57] and [61] in particular.) 43 In this regard the Tribunal earlier had found at [63] that the appellant, as a failed asylum seeker, would probably be charged with breaches of domestic law but found that he would be held on remand only for up to a few days pending his court appearance and release on bail. 44 Finally, while the Tribunal's conclusions on the appellant's complementary protection claims were briefly expressed, the factual basis for the claims to fear significant harm and thereby satisfy the complementary protection criteria under s 36(2)(aa) was the same as the factual basis for the claims to fear serious harm amounting to persecution for the purposes of the refugee criteria in s 36(2)(a). Not surprisingly, therefore, the Tribunal made findings as to whether the feared harm constituted significant harm under s 36(2)(aa) of the Act when analysing and making detailed findings on the appellant's claims under s 36(2)(a). The Tribunal is not required to separately set out and repeat the detail of that analysis and consideration when making findings on the complementary protection claims before it can be properly concluded that the Tribunal considered, and gave reasons for its findings on, the complementary protection claims. So understood, I do not consider that there is any force in the submissions that the Tribunal failed to give reasons for its decision on the appellant's complementary protection claims.

5. CONCLUSION 45 For these reasons, the appeal must be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.