WZATC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background and decision of the Tribunal 5 In January 2012, when the appellant was still in Sri Lanka, he applied for a tourist visa for Australia, which was refused. He left Sri Lanka by boat in May 2012 and was transferred to Christmas Island on arrival. He lodged an application for a protection visa in August 2012 and the delegate refused the application in October 2012. He applied for review to the Tribunal, which affirmed the delegate's decision on 19 April 2013. 6 The Tribunal did not believe the appellant's claims of having experienced persecution or serious harm while he was in Sri Lanka, and so did not accept those claims as a basis for a well-founded fear of persecution for a Convention reason. At the time of the Tribunal's decision, the relevant criterion in s 36(2)(a) of the Migration Act 1958 (Cth) picked up the definition of 'refugee' in Article 1A(2) of the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967 (Convention), whereby a person is a refugee if (relevantly) he or she: … 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 nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country … 7 The appellant claimed before the Tribunal that if he were returned to Sri Lanka he would be a member of a particular social group, namely failed Tamil asylum seekers. He said that if he were to return via the airport in Sri Lanka the authorities would detain and harm him. He claimed that his mother had told him of 50 to 60 people who had been deported back to Sri Lanka and on arrival at the airport they had been taken straight to the CID office and had not seen their families. He told the Tribunal that if he were to return to Sri Lanka as a failed asylum seeker he would have to report on how many people live in his house and that the police would torture him. The appellant's representative at the time put a further written submission and country information about mistreatment of failed asylum seekers to the Tribunal after the Tribunal hearing. 8 In its reasons the Tribunal set out a detailed account of country information about the treatment of failed Tamil asylum seekers returning to Sri Lanka. Some of the information had been published by or obtained from the governments of various countries, including Australia, Canada, the United Kingdom and Denmark. There was also information from organisations such as the United Nations High Commissioner for Refugees, Amnesty International and other advocacy groups, and the Tribunal also referred to news reports. It is not necessary to describe the content of the country information. The appeal is not based on any inconsistency between that information and the Tribunal's findings, or any illogicality in the Tribunal's treatment of the material. 9 The Tribunal then made factual findings about the appellant's claims to fear persecution due to matters such as imputed LTTE involvement. It is not necessary to describe them either, save to note that it is clear that the Tribunal did not accept that the appellant had, or would have, any profile that would lead to adverse interest from the Sri Lankan authorities. 10 In relation to the claims to fear harm as a returning failed Tamil asylum seeker, on the basis of the evidence before it, including country information on treatment of returnees, the Tribunal did not accept that the appellant would be tortured or otherwise seriously harmed. The Tribunal then reasoned as follows (paras 123-124, footnotes omitted): The Tribunal is prepared to accept that failed Tamil asylum seekers are capable of meeting the requirements for constituting a 'particular social group'. The Tribunal also accepts that if the applicant returns to Sri Lanka he would be a member of a particular social group so described. However, on the country information cited above, the Tribunal does not accept that the applicant would be persecuted for reasons of membership of that, or any other, particular social group. The information which the Tribunal relies on in this respect is the information from the Canadian, British and Australian governments which states that all Sri Lankan nationals are treated in the same manner with regard to entry procedures into Sri Lanka. The same information indicates that failed asylum seekers and Tamils are not specifically targeted for adverse attention from the Sri Lankan authorities at the time of entry. As set out above, DFAT have also advised that Tamils returning to the [sic] Sri Lanka are subject to the same entry procedures as any other citizen of Sri Lanka. The Tribunal accepts the country information which indicates that some failed asylum seekers are specifically held for questioning, detained and arrested at the airport on return to Sri Lanka, however, the Tribunal considers that such detention and questioning is directed at those [sic: who] are persons of interest to the Sri Lankan authorities such as those with a profile described by the UNHCR Guidelines. The Tribunal has concluded the applicant does not have such a profile, and nor does he have any other profile that would cause him to be of interest to the relevant authorities. The Tribunal accepts that those who have departed in breach of the Immigration and Emigration Act may also be detained, questioned, and possibly charged with offences under the law. The Tribunal finds that such legislation is legislation of general application. The Tribunal is not satisfied that the enforcement of the penalties provision of the Immigration and Emigration Act is applied in a discriminatory manner or that it intentionally impacts disproportionately or unfairly on any particular group in Sri Lanka. 11 At para 125 the Tribunal said: … The Tribunal accepts that the prison conditions in Sri Lanka may be cramped and unhygienic and may not meet international standards, however, the applicant would face the same condition as the general population. On the evidence before it, the Tribunal is satisfied that the most likely penalty that will be imposed on the applicant is a fine. The Tribunal finds that the imposition of a fine in the circumstances where the applicant has breached a law of general application is not persecutory treatment in the circumstances of this case. 12 Having regard to all the claims, The Tribunal was not satisfied that the appellant faced a real chance of 'serious harm', as then defined in the Migration Act, if he returned to Sri Lanka, or that his fear of persecution for Convention reasons was well founded. 13 The appellant also relied on his claim about 50 or 60 people being taken to the CID office in relation to complementary protection under s 36(2)(aa) of the Migration Act. The Tribunal found against him on that point, and that finding was not challenged.

The Federal Circuit Court decision 14 Due to procedural issues in the Federal Circuit Court, the appellant did not receive a final hearing or decision in that court until 22 October 2019, despite having commenced the proceeding on 6 August 2013. 15 I will set out the two grounds of review in the Federal Circuit Court in full, as they are essentially replicated in the grounds of appeal in this court: 1. The decision of the Tribunal was affected by jurisdictional error as a consequence of it failing to understand and apply correctly the test to be applied in determining whether treatment under a law of general application amounts to persecution, in that it failed to ask itself at the threshold whether there was discriminatory treatment of Tamil returnees or failed asylum seekers under the Sri Lankan Immigration and Emigration Act. 2. The decision of the Tribunal was affected by jurisdictional error as a consequence of it asking itself a wrong question, namely whether the Sri Lankan Immigration and Emigration act [sic] intentionally impacts disproportionately or unfairly on any particular group in Sri Lanka. 16 In brief ex tempore reasons, the primary judge dismissed both grounds. In relation to ground 1, his Honour found that the Tribunal's findings that the Immigration and Emigration Act was a law of general application, and that it was not applied in a discriminatory manner, were open. His Honour characterised one basis on which counsel for the appellant at the time criticised the findings as an invitation to engage in impermissible merits review as, according to his Honour, counsel had simply identified a different finding which the Tribunal might have made on the country information. His Honour expressed conclusions that the Tribunal did not misunderstand the question, that there was no jurisdictional error in the Tribunal's adverse findings against the appellant because those findings were open, and that the Tribunal had correctly identified the relevant law. This is all put in broad terms; up to this point, his Honour's reasons do not describe the precise basis on which the Tribunal's findings were criticised, or articulate his process of reasoning as to why the criticisms were not made out. 17 The primary judge then dismissed as 'without content' a contention in the submissions that the Tribunal 'misdirected itself somehow' because of its reference to the legislation as being of general application: at [32]. His Honour observed that this was a relevant matter for the Tribunal to take into account, as it impacted on whether or not the requirements of the Convention could be made out. 18 The primary judge's consideration of ground 1 concluded by rejecting a submission made on behalf of the appellant that the Tribunal's reasons could be read as containing an 'assumption' that the appellant would suffer discrimination on return to Sri Lanka. 19 Turning to ground 2, the primary judge summarised the appellant's argument as being that the Tribunal erred by asking itself whether any disproportionate and unfair impact (presumably on a social group) was intentional. The submission before his Honour appeared to be that the correct question was whether there was an impact of that kind in fact, not whether it was intentional, and so the Tribunal had missed the important threshold step of asking whether the law applied in a discriminatory manner. 20 The primary judge's view on this was that the Tribunal had correctly identified the law as to when a person is a refugee under the Convention as modified by the Migration Act as it stood at the time of the Tribunal's decision, and that a fair reading of the Tribunal's reasons did not reveal any misapplication of these tests in respect of the Immigration and Emigration Act. Once again, this was said in a conclusory way which does not reveal his Honour's reasoning process as to the content of refugee law or its application by the Tribunal. 21 The primary judge also said that the Tribunal's finding that the Immigration and Emigration Act was a law of general application was a correct independent finding which meant that the appellant did not meet the Convention criteria in respect of the application of that Act. His Honour went on to say, however, that he did not accept that the reference to intention in the Tribunal's reasons was an error. His Honour dismissed ground 2.

Consideration - ground 1 22 While the appellant was represented by counsel in the Federal Circuit Court, he represented himself throughout this appeal. The grounds of appeal assert error on the part of the primary judge in failing to find that the Tribunal erred. The alleged errors of the Tribunal are described in precisely the same terms as they were in the grounds of review. I will not repeat the descriptions, and I will continue to refer to them as ground 1 and ground 2. 23 The Minister complained that the grounds of appeal did not identify any specific error on the part of the primary judge, but instead focussed on the reasoning of the Tribunal. It is true that the essence of this court's appellate jurisdiction is the correction of error on the part of the primary judge, not on the part of the Tribunal, and that an appeal by way of rehearing should not be approached as a repeat of the trial before the court below. However it will be apparent from my description above that his Honour's reasons for decision contain little by way of an articulated reasoning process. So it is hard to see how the appellant could identify any error by the Federal Circuit Court more specifically than he has. The appellant did not, however, assert that inadequacy of the primary judge's reasons was an appealable error, and as will be seen I consider that while the reasoning process was not articulated with any clarity, it can nevertheless be discerned (and was correct). 24 Ground 1 is ambiguous. The alleged error it identifies is that the Tribunal 'failed to ask itself at the threshold whether there was discriminatory treatment of Tamil returnees or failed asylum seekers under the Sri Lankan Immigration and Emigration Act'. This could be an allegation that the Tribunal did not ask itself whether the Sri Lankan authorities applied that Act in a way that resulted in discriminatory treatment, so that the appellant had a well-founded fear of persecution. Or it could mean that the Tribunal did not ask itself whether the provisions of the Act require or compel discriminatory treatment. One is about what the authorities do in fact, the other about what the Immigration and Emigration Act requires. 25 If the appellant is complaining about the Tribunal's findings about how the authorities were likely to apply the Act in fact, the complaint has no merit. The Tribunal gave an apparently thorough account of the country information as to how returning Tamil asylum seekers were treated on return, and at paras 123-125 found, in effect, that there was not a real chance that the appellant would experience discriminatory treatment on his return. So it did ask itself whether he would experience discrimination, and that necessarily encompassed discrimination by reason of the Sri Lankan authorities' application of the Immigration and Emigration Act. To the extent that the Tribunal preferred some of the country information over other information, it is well established that this is not (without more) capable of being jurisdictional error: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]; Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45]. 26 If, on the other hand, the error identified in ground 1 is that the Tribunal failed to consider whether the provisions of the Immigration and Emigration Act are inherently discriminatory, that would not avail the appellant. That is because, whatever the provisions of the Act may say (they were not before the Tribunal or the Federal Circuit Court), the content of a law will not by itself amount to persecution for the purposes of the Migration Act as it stood at the time of the Tribunal's decision. The question under the Convention was whether the appellant had a 'well-founded fear of being persecuted'. At the time of the decision, s 91R(1) of the Migration Act provided that for the purposes of the application of the Act, the relevant provision of the Convention did not apply in relation to persecution for one or more of the Convention reasons unless 'the persecution involves serious harm to the person' (s 91R(1)(b)) and 'the persecution involves systematic and discriminatory conduct' (s 91R(1)(c)). The existence of an inherently discriminatory law may be relevant, because the existence of the law and its potential application to the non-citizen if he or she returns to the country of nationality may increase the probability that he or she will experience persecution if the law is enforced. But ultimately the non-citizen was required to establish a well-founded fear that he or she would experience serious harm as a result of conduct. It would not be sufficient to establish merely that a law which may or may not be enforced was on the statute books of the receiving country. 27 Therefore the Tribunal's findings that the appellant would not in fact experience discriminatory treatment on return to Sri Lanka meant that there was no need for the Tribunal to give any separate consideration to whether the provisions of the Act required or compelled discriminatory treatment. There was no suggestion that failing to obtain and consider the terms of the Immigration and Emigration Act meant the Tribunal failed to give adequate consideration to the likelihood that the appellant would suffer persecution in fact. 28 Counsel who appeared for the appellant in the Federal Circuit Court seems to have recognised this. I read the written submissions in the Federal Circuit Court, since it was not clear from the primary judge's reasons what had been put to his Honour. I did so for the purpose of understanding the conclusions that his Honour reached and assessing whether he fell into error in the way alleged in ground 1. Doing so illuminated the meaning of his Honour's reference to an 'assumption' by the Tribunal that the appellant would suffer discrimination on return to Sri Lanka (see [18] above). It turns out that the submissions put to his Honour sought to identify logical inconsistency in paras 123-125 of the Tribunal's reasons. The submission was that if the Tribunal had determined that the Immigration and Emigration Act was not applied in a discriminatory manner, then it would have had no need to consider whether it was a law of general application. So, it was said, the finding in para 124 that it was a law of general application meant that the Tribunal must have considered that the Act was applied in a discriminatory way. That was the 'assumption' that his Honour rejected. 29 His Honour was correct to do so. It is clear from the Tribunal's reasons as a whole that it was satisfied that the appellant would not experience discriminatory treatment on return to Sri Lanka. The (arguable) inconsistency in the reasons on which the appellant relied was incapable of leading to a construction of the Tribunal's reasons to the effect that, in fact, it held the opposite view. To accept the submission put to the primary judge would have been to engage in precisely the kind of 'over-zealous judicial review' which Brennan CJ, Toohey, McHugh and Gummow JJ warned against in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 30 I do not uphold ground 1.

Consideration - ground 2 31 Ground 2 focusses on the following sentence from para 124 of the Tribunal's reasons: 'The Tribunal is not satisfied that the enforcement of the penalties provision of the Immigration and Emigration Act is applied in a discriminatory manner or that it intentionally impacts disproportionately or unfairly on any particular group in Sri Lanka'. The particular focus of the ground seems to be on the word 'intentionally'. The contention appears to be that the Tribunal erred in asking itself whether the disproportionate or unfair impact was intentional, because impact of that kind can be persecution for the purposes of the Convention, regardless of whether it is intentional or not. 32 It appears that before the primary judge the appellant relied on observations from Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 at [38] which indicate that malignity and enmity are not necessary elements of persecution under the Convention. But those are particular dispositions or emotions; it does not follow that the broader question of the intention of those said to be engaging in persecution is irrelevant to whether a person is a refugee. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 257, McHugh J said: When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. 33 In relation to the requirement in s s 91R(1)(c) of the Migration Act at the time of the Tribunal's decision that the persecution involve 'systematic and discriminatory conduct' in SZTEQ v Minister for Immigration [2015] FCAFC 39; (2015) 229 FCR 497 at [72] the Full Court (Robertson, Griffiths and Mortimer JJ) said: It is clear then, that 'systematic' is used in s 91R(1)(c) in the same way that 'discriminatory' is used, to direct the decision-maker's attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the alleged persecutor, rather than behaviour that is random or accidental. It also reinforces the causative aspect of Art 1A(2), that persecution must be 'for reasons of' one of the prescribed attributes in Art 1A(2). 34 The Convention protects those who have a well-founded fear of being persecuted for particular reasons. If conduct which adversely affects particular persons or groups is unintentional, it is difficult to see how it could be said to be engaged in for one of the reasons set out in Article 1A(2). So if the Tribunal was influenced by a view that those enforcing (or making) the Immigration and Emigration Act did not intend that it impact disproportionately or unfairly on any particular race or social group, I do not consider that would be an error. 35 I would go further, however, to find that the Tribunal was not in fact influenced by any such view. Reading its reasons as a whole indicates that the reference to intention in para 124 was superfluous. The Tribunal's finding, based on a detailed account of the country information, was that the way in which the Immigration and Emigration Act was applied by the Sri Lankan authorities did not involve any disproportionate or unfair impact on any social group of which the appellant was a member, including failed Tamil asylum seekers. For reasons I have explained, that was sufficient to dispose of the appellant's claim to protection based on membership of any such group. It would be wrong to describe the Tribunal's view as being that there was a real chance that the appellant would experience discrimination under the Immigration and Emigration Act, but that was not persecution for a Convention reason because it was not intentional. To place such weight on the reference to intention would, once again, be to engage in over-zealous judicial review: Wu Shan Liang at 272. 36 The primary judge's conclusion on this point (at [38]) was that 'the Court does not accept that the use of the reference to "intentional" gives rise to any error by the Tribunal'. That was said after his Honour's statement that the Tribunal had made an independent finding that the law was not applied in a discriminatory manner. The primary judge should therefore be understood as having concluded that the Tribunal's reference to intention was superfluous. His Honour was correct to have done so. I do not uphold ground 2.

Conclusion 37 The appeal must be dismissed, with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.