FEDERAL COURT OF AUSTRALIA

SZTFB v Minister for Immigration and Border Protection [2015] FCA 1326

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

3.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant is a citizen of Sri Lanka. He is a Tamil. He arrived on Christmas Island, as an irregular maritime arrival, on 18 May 2012. He applied for a Protection (Class XA) visa on 27 August 2012.

2    The appellant claimed that he and his family farmed in an area controlled by the Liberation Tigers of Tamil Eelam (“LTTE”). He alleged that his sister had been shot and killed in crossfire between the LTTE and the Sri Lankan army. He claimed that the Sri Lankan army suspected that he and his sister had been involved with the LTTE. He had been detained and questioned at an army camp on suspicion of his involvement with the LTTE. He said that he had spent time in Malaysia, Qatar and India in order to avoid the Sri Lankan army. The appellant claimed that the Sri Lankan army had attended his parents’ home looking for him on a number of occasions.

3    In May 2012, the appellant left Sri Lanka to travel to Australia. The appellant alleged that after he left, his parents told him that the army had attended their home and told them that they were looking for him and “if he came back he was dead”.

4    The appellant claimed to fear persecution because of his ethnicity as a Tamil, because of his imputed political opinion and because he would be returning to Sri Lanka as a failed asylum seeker.

5    The Minister’s delegate found that the appellant’s account of his experiences in Sri Lanka was not credible. The delegate found that there was not a real chance that the appellant would suffer persecution because he was a Tamil who left Sri Lanka illegally and sought asylum abroad.

6    The delegate rejected the application.

THE REFUGEE REVIEW TRIBUNAL

7    The appellant appealed to the Refugee Review Tribunal (“the Tribunal”). The Tribunal conducted a hearing at which the appellant and his migration agent were present.

8    The Tribunal found that the appellant was “not a witness of truth and the account of events on which his protection claims are based is false.”

9    In relation to the possibility of harm on the appellant’s return to Sri Lanka the Tribunal stated, at [149]-[150]:

“149.    The Tribunal accepts that the [appellant] will be questioned when he arrives at the airport. However, there is no reliable country information that Tamils returned to Sri Lanka as failed asylum seekers from Australia including those who left the country illegally suffer harm in the process of being questioned at the airport, brought before a magistrate as soon as possible, and granted bail to then return to their native area.

150.    For the reasons given above, if the [appellant] is to be held on remand before being brought to a magistrate, that will be for a very brief period and the Tribunal considers that the risk of him suffering serious harm in this process, in particular, when being held on remand in what would most likely be poor conditions, is remote.”

10    The Tribunal concluded that, based on available country information, “the risk of the [appellant] suffering harm on return to Sri Lanka because of his ethnicity, age, gender, place of origin, his illegal departure and his return as a failed asylum seeker, considered singularly or cumulatively, is remote.”

11    The Tribunal rejected the complementary protection claim for the same reasons adding, at [177]-[178]:

“177.    The Tribunal acknowledges the country information about poor conditions in Sri Lankan prisons but finds that the possibility of him being held in remand briefly before being brought before a magistrate does not equate with a real risk of the [appellant] suffering significant harm (as defined in the Act).

178.    For the reasons given, the Tribunal finds that the risk of the [appellant] receiving a jail sentence because of his illegal departure is remote. The [appellant] will most likely receive a fine and the imposition of a fine within the range given in country information set out earlier in this decision also does not amount to significant harm (as defined in the Act).”

12    The Tribunal affirmed the delegate’s decision.

THE FEDERAL CIRCUIT COURT

13    The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The grounds relied on in his application were that:

“Ground 1

The Tribunal denied the [appellant] procedural fairness and thereby breached s 425 of the Act when it failed to put determinative issues to the [appellant]. The Tribunal committed jurisdictional error.

Particulars

The Tribunal failed to put the [appellant] on notice of dispositive/determinative issues – delegate did not make adverse findings about the various incidents claimed by the [appellant] such as death of the sister (the delegate principally relied upon the country information that the [appellant] was not in need of protection); the Tribunal proceeded [to] make [an] adverse finding without giving the [appellant] chance.

The [appellant] contends that the Tribunal misapprehended the claim that he would be suspected of being LTTE because of his deceased sister[’s] LTTE involvement. The Tribunal has misapprehended the claim and failed to assess the [appellant’s] claim that the SLA would suspect the [appellant] to be LTTE and harm him (…at [100]) (instead misdirecting enquiries to reason for suspected involvement of deceased sister’s involvement with LTTE and the intention of his sister to involve LTTE which could be answered only by the deceased sister arbitrarily dismissive of the documents…at [112] but failing to look at the key integer that the sister was dead, erroneously assessing against persons with general profile group…at [144])…and failing to put the non-reliability of the document to the [appellant] thereby denying procedural fairness.

Ground 2

The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the [appellant’s] particular social group being a young person, Hindu, of Tamil ethnicity from North East and whose sister was killed in cold blood.

Particulars

The Tribunal has been procedurally unfair and made decision turned on unidentified or a different social group (…at 126]) instead of clearly identifying the social group and dealing with the relevant social group[s] the [appellant was] advancing ‘family member of LTTE sympathiser’ and did not deal with the particular social group advanced by the [appellant] (above attributes and a family member killed in cold blood and whether the [appellant] was at risk of harm).

Ground 3

The Tribunal committed jurisdictional error when it failed conflated (sic) the issues …relating to complementary claims with s 36(2)(a) claim; failed to take into account all personal circumstances and erred in the application of ‘real risk’ test.

Particulars

The Tribunal failed to address whether the [appellant’s] claim that his sister has been killed in cold blood together with other matters addressed would pose risk of serious harm upon return to Sri Lanka in circumstances where it is claimed that a family member [was] killed in cold blood.

The Tribunal failed to consider”

14    The learned judge rejected each of the appellant’s contentions: see SZTFB v Minister for Immigration & Anor [2014] FCCA 2367.

15    In his written submissions in support of his first ground the appellant expanded upon the allegation that the Tribunal had failed to put certain information to him pursuant to s 425 of the Migration Act 1958 (Cth) by saying that the determinative matters which had not been put to him were the rape of his sister, a threat made to his father, the death of another sister and his detention. The appellant submitted that the Tribunal did not put to him that it would reach a conclusion on these matters which was different from the decision reached by the delegate. The trial judge found that the Tribunal had put all determinative questions to the appellant. He found, at [17], that “[s]ection 425 did not oblige the Tribunal to disclose its thought processes to the [appellant] and so the fact that it did not do so was not an error.”

16    In respect of ground two, the trial judge found that the Tribunal had considered the particular social groups which had been suggested by the appellant’s migration agent and it was not obliged to consider any others.

17    His Honour identified three subordinate contentions which had been advanced under cover of the appellant’s third ground of review. The first was that the Tribunal had treated its findings on Convention-related claims as applicable to the appellant’s complementary protection claims. Secondly, the Tribunal had not given separate consideration to the complementary protection claims. The third was that the Tribunal had misapplied the complementary protection test.

18    The judge explained his reasons for rejecting the first two contentions at paragraphs [25] and [26], as follows:

“25.    The Tribunal approached the [appellant’s] complementary protection claims in the same manner as the [appellant] had proposed them, namely, that the facts he advanced were equally applicable to both his Convention-related claims and to his complementary protection claims.

26.    The Tribunal considered but rejected the [appellant’s] factual claims as being untruthful. It also considered the [appellant’s] claims about his circumstances more generally in Sri Lanka but found that he was not at risk of harm for the reasons he alleged. Having discussed those matters in detail in the context of the [appellant’s] Convention-related claims, it was unnecessary for the Tribunal to repeat the exercise in the context of his complementary protection claims because its findings of fact applied equally well to both. It also gave separate consideration to those claims which related solely to the complementary protection allegation, namely the ones arising out of the potential for the [appellant] to be detained in poor prison conditions upon his return to Sri Lanka because he had left the country illegally.”

19    His Honour found that the Tribunal had not erred in its application of the complementary protection test.

THE APPEAL

Original grounds

20    The appellant has now appealed to this Court. The appellant’s notice of appeal, filed on 25 November 2014, contained the following grounds of appeal:

“1.    His honour erred in failing to find that the Tribunal committed legal error when it undertook a qualitative assessment of the risk of serious harm to the [appellant] under section 91R(2)(a) of the Migration Act 1958 (Cth).

Particulars

a)    His honour erred in failing to find that the Tribunal committed an error in the manner of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947.

b)    At [8] and [26] of the judgment His Honour acknowledges that the [appellant] claimed that he was at risk of serious harm within the meaning of s 91R(2)(a).

c)    His Honour erred in failing to find that the Tribunal had erred by undertaking a qualitative assessment of the serious harm that the [appellant] faced.

d)    The Tribunal further erred by failing to undertake a de minimum exclusionary qualitative assessment of the serious harm faced by the [appellant] and then undertaking an assessment of the real risk of harm to the [appellant].

e)    His Honour erred in failing to find that the risk to the [appellant’s] liberty posed by imprisonment was serious harm within the meaning of s 91R(2)(a).

2.    His Honour erred in failing to find that ground three of the application was made out.

Particulars

a)    At [25] and [26] His Honour erred in failing to consider the risk of harm to [the appellant] under the complementary protection criteria, with respect to his potential imprisonment and the harm he faces with respect to poor prison conditions.

b)    At [8] His Honour identifies that the [appellant] feared harm due to poor prison conditions.

c)    Notwithstanding an adverse credibility finding the [appellant’s] claim to fear he will suffer significant harm with respect to poor prison conditions survives.”

21    The appellant sought leave to file an amended notice of appeal. The Minister did not oppose the granting of leave. The amended notice of appeal contained a single ground:

“1.    His Honour erred at [17] in failing to find that the Tribunal denied the [a]ppellant procedural fairness and thereby breached s 425 of the Act when it failed to put determinative issues and information to the [a]ppellant. The Tribunal committed jurisdictional error.

Particulars

(a)    The [a]ppellant appeared before the Tribunal to give evidence on 24 January 2013;

(b)    The Tribunal relied adversely on material that was either accessed or published after the hearing date of 24 January 2015 (sic) and were therefore not put to the [a]ppellant for comment during the hearing:

(i)    Footnote 25 was accessed on 6 February 2013;

(ii)    At [74] the Tribunal quoted from a DFAT Report 1478 – RRT Information Request: LKA41452, 28 February 2013 (footnoted at 26); and

(iii)    At [75] the Tribunal quoted from a DFAT Report 1479 – RRT Information Request: LKA41452, 4 March 2013 (footnoted at 27).

(c)    The Tribunal failed to provide the [a]ppellant with the opportunity to have a fair hearing.”

Amended ground of appeal

22    The appellant filed written submissions in which he stated:

“I could not consider reports published on 28 February 2013 and 3 March 2013 that was not in existence at the time of my Tribunal hearing on 24 January 2013 that formed part of the reason for the Tribunal’s adverse decision on 29 July 2013. Therefore, I was denied the opportunity for a fair hearing in accordance with section 425 of the Act.”

23    The appellant did not address any of the appeal grounds raised in his original notice of appeal filed on 25 November 2014.

THE MINISTER’S SUBMISSIONS

24    The Minister submitted that the country information, referred to in the appellant’s amended notice of appeal, had been put to the appellant for his consideration and comment. The Minister referred to a letter dated 22 April 2013 from the Tribunal to the appellant in which it advised the appellant of the country information it intended to take into account when determining his application for review. The letter included a schedule of country information which the Tribunal stated:

“may indicate that [the appellant’s] fear of persecution appears not to be well founded and that there appear not to be substantial grounds for believing that, as a necessary and foreseeable consequence of [the appellant’s] removal from Australia to the receiving country, Sri Lanka, there is a real risk that [the appellant] will suffer significant harm.”

25    The country information particularised in the appellant’s amended notice of appeal concerned the arrest and remand of Sri Lankan irregular maritime arrivals non-voluntarily returned from Australia. This country information was contained in the schedule to the letter dated 22 April 2013 and was in the same form as it appeared in the Tribunal’s final decision record.

26    On 6 May 2013, the appellant’s representative provided submissions in response to the Tribunal’s letter dated 22 April 2013. As part of the submission, the appellant’s representatives addressed country information regarding returnees to Sri Lanka who are failed asylum seekers.

27    The Minister also addressed the appellant’s original grounds of appeal lest they had not been abandoned by the appellant.

28    The Minister noted that the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 had been overturned by the High Court. He submitted that “the Tribunal did not err in its qualitative judgment about whether the appellant would suffer ‘serious harm’, ultimately finding that risk of such harm was remote.” He referred to the passages of the Tribunal’s reasons in which it considered the risk of harm to the appellant in returning to Sri Lanka as a failed asylum seeker and the Tribunal’s conclusion that any risk of serious harm was remote.

29    As to the second ground of appeal, the Minister submitted that the primary judge’s findings regarding the Tribunal’s consideration of the appellant’s factual claims relating solely to complementary protection were correct. In its determination of the complementary protection claim, the Tribunal had found that, although country information revealed prison conditions in Sri Lanka were poor, “the possibility of [the appellant] being held in remand briefly before being brought before a magistrate does not equate with a real risk of the [appellant] suffering significant harm.” The Minister further submitted that the Tribunal was not obliged to consider the risk of harm with respect to his potential imprisonment and that the “assessment of risk was a matter for the Tribunal and the Tribunal’s reasons do not disclose that the Tribunal’s assessment was affected by jurisdictional error.”

CONSIDERATION

30    The appellant appeared at the hearing this afternoon and had the assistance of an interpreter.

31    At the outset of the hearing I asked the appellant whether he wished to press the two grounds in his original notice of appeal and the single ground in his amended notice or whether he only wished to pursue the latter. He said that he wished to pursue all grounds. I then directed his attention to the two grounds which appeared in his original notice. He said that he had not seen them before. I had them translated for him. I then asked him to confirm that he wished to pursue these grounds. He confirmed that he did.

32    I then drew the appellant’s attention to the fact that, although he had filed written submissions in support of the ground in his amended notice, there were no written submissions filed by him relating to his original grounds.

33    I confirmed with him that the Minister’s written submissions, which dealt with all three grounds, had been translated for him.

34    I then invited the appellant to advance any oral submissions in support of his grounds. He said that he did not wish to do so.

35    I have considered the Tribunal’s reasons and those of the trial judge. I have considered each of the grounds relied on by the appellant and the particulars sub-joined to them.

36    The grounds lacked substance for the reasons advanced by the Minister. The trial judge’s reasons disclose no appellable error.

DISPOSITION

37    The appeal must be dismissed with costs.

Associate:

Dated:    26 November 2015