FEDERAL COURT OF AUSTRALIA

SZRHH v Minister for Immigration and Citizenship [2012] FCA 1424

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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 left Sri Lanka by boat on 31 March 2009 and arrived, it would appear, at Christmas Island on 24 April 2009. He was an “offshore entry person” within the meaning of s 5 of the Migration Act 1958 (Cth) (“the Act”) and was not able to lodge a valid application for a protection visa except as provided by s 46A(2) of the Act. The conditions in s 46A(2) were not met.

2    However, the appellant was then prosecuted for a people smuggling offence before the District Court of Western Australia, found guilty and convicted. He was sentenced to five years imprisonment with a non-parole period of three years. Those events resulted in the grant to him of a criminal justice visa. When he was granted a visa the appellant became entitled to apply for a protection visa and did so on 22 March 2011.

3    The appellant’s application for a protection visa was rejected by a delegate of the Minister for Immigration and Citizenship on 14 June 2011. On 6 July 2011 the appellant sought a review of the delegate’s decision by the Refugee Review Tribunal (“the RRT”). On 9 January 2012 the RRT affirmed the decision of the delegate. On 24 January 2012, the Western Australian Court of Appeal upheld an appeal which the appellant had lodged against his conviction and ordered that he be retried. Subsequently, the Director of Public Prosecutions (“the DPP”) elected not to further prosecute the appellant. That means the appellant is under no further restraint from the criminal justice system in Australia and his conviction for people smuggling has been set aside.

4    After refusal of his application for a protection visa in the review by the RRT, the appellant commenced proceedings in the Federal Magistrates Court of Australia (“the FMCA”) for judicial review of the decision of the RRT. His application to the FMCA was filed on 26 March 2012. An extension of time was necessary. In a judgment given on 14 September 2012 the FMCA granted the appellant an extension of time in which to file his application, but went on to dismiss the application for judicial review of the decision of the RRT (SZRHH v Minister for Immigration & Anor [2012] FMCA 843). It is by way of appeal against the judgment of the FMCA that the appellant’s circumstances come before this Court.

5    Although it will be necessary to explain the factual background, it is convenient now to set out the grounds of the appeal to this Court. They are:

1.    The Court Below erred in holding that the Refugee Review Tribunal (the Tribunal) was not required to consider the reason why the appellant was [detained] and mistreated in January 2009.

2.    The Court Below erred in failing to find that the Tribunal had committed a jurisdictional error in making its finding that the appellant could avail himself of a defence of “double jeopardy” if he were prosecuted for a “people smuggling” offence in Sri Lanka.

Particulars

(a)    The appellant’s conviction having been set aside on appeal, the fact upon which the Tribunal based its finding did not exist.

(b)    Had the Tribunal not so erred it would have been open to it to have made further enquiries to determine whether the relevant Sri Lankan laws punishing “people smuggling” may have themselves amounted to persecution on a Convention ground, or may have been applied against the appellant for a Convention reason.

6    Before dealing with the grounds of appeal in greater detail it is necessary to say something about the factual circumstances and about the legal issues to which the grounds of appeal relate. It is beyond the jurisdiction of this Court to traverse the facts or the question of the merit of the appellant’s application for a protection visa. The power of this Court is limited to addressing error by the FMCA and, in turn, addressing the question of whether the RRT misunderstood, exceeded, or failed to exercise the jurisdiction given to it under the Act. If a conclusion is reached that a jurisdictional error of some kind was committed by the RRT then the appeal against the decision of the FMCA may be upheld and, if there is utility in doing so, the matter may be remitted to the RRT for further attention. It is there and not in this Court (or in the FMCA) that any consideration of the merits of the appellant’s application for a protection visa would necessarily occur.

7    At the time of the hearing before the RRT the records of the Department of Immigration and Citizenship suggested that the appellant was 31 years old. He married in 2004 and has two children. He has spent all his life in Sri Lanka and most of that time in Negombo where he was born. He is of Sinhalese ethnicity but can speak both Sinhalese and Tamil. In his written claims the appellant said that he had been approached by members of the LTTE in about 2007. He avoided being killed, as others in the neighbourhood were at the time, by acceding to a request to deliver goods using his boat. He delivered goods on two occasions. The goods included weapons. He became fearful that the government would come to know that he had been assisting the LTTE and refused to deliver goods when asked for a third time. He was then beaten. After he returned to Negombo he was asked to go to the police station for questioning but was released after half an hour and told it was not him who was sought for an interview. In about January 2008 the appellant was again asked by police to attend an interview. He was photographed after being questioned about his Tamil “friends”. He denied having any such friends. About one year later, in January 2009, he was taken to the police station, his clothes were removed, he was restrained and then beaten. He was held by the police for two days before being released. The appellant said he was not questioned by police on that occasion and did not know why he had been detained and beaten.

8    The appellant had contemplated leaving Sri Lanka since 2008. He left in March 2009. He claimed to be a victim of persecution by the opposition party in Sri Lanka, the LTTE, and the Sri Lankan police.

9    These and other claims were examined in some detail by the RRT and the RRT set out in its decision a reasonably comprehensive statement of the appellant’s responses to its questions.

10    After an initial hearing, which took place by video conference on 13 October 2011, a further written submission was made on behalf of the appellant. The submission was received by the RRT on 20 October 2011. The RRT conducted a further hearing by video conference on 15 December 2011. The appellant was invited to provide an update on any developments in his circumstances since the first hearing and invited to provide specific information as foreshadowed in the earlier hearing. The RRT also drew to the attention of the appellant and his representatives a number of matters which concerned it. One matter concerned a claim by the appellant that because he was a supporter of the United National Party (“UNP”), he had been kidnapped by members of the opposition party, tortured and had his left little finger cut off. The RRT indicated that country information suggested there was no evidence that UNP supporters were captured by the Sri Lankan Freedom Party in 2005-2006, whereas it might be expected that such an event or events would be reported. The RRT also indicated that it was concerned that the appellant, being a professional fisherman, might have lost his finger in a fishing accident. The RRT said it knew of only one report where finger amputation had been used to punish or intimidate. In particular, the RRT explained that if it concluded the finger amputation had not occurred as described, the appellant’s credibility might be in question.

11    The appellant had expressed concern about being prosecuted in Sri Lanka for people smuggling. The RRT referred to country information indicating that the principle of “double jeopardy” is embodied in the Sri Lankan Constitution and indicated that, as a result, the RRT might not accept the appellant’s claim that he risks a prosecution in Sri Lanka (as well as Australia) for people smuggling which might amount to persecution of him.

12    The appellant was allowed a further period until 5 January 2012 to make a further submission about those matters if he wished to do so.

13    On 5 January 2012 a further submission was received. In that submission the appellant emphasised his concerns about being targeted by the Sri Lankan authorities – mainly the police and the government – and said he was not as worried about the LTTE because of its diminished activities, or the Sri Lankan Freedom Party in the light of his reduced involvement with the UNP. He was concerned that he could be identified by the police from the photograph taken of him in 2008. He indicated that he had been reassured by the RRT’s explanation of the double jeopardy principle and was prepared not to rely on a concern about prosecution and imprisonment in Sri Lanka for people smuggling. As to the loss of his finger, he explained that during elections the little finger is painted when a vote is cast and that his little finger was cut off by the opposition party as a symbolic gesture.

14    The RRT discussed and assessed the appellant’s claims in detail. The RRT also discussed some amount of independent country information which it identified. The RRT was not satisfied that all of the claims by the appellant should be accepted. Some were rejected because the appellant was not regarded as a completely reliable or credible witness. His claim to have had his finger amputated as a political reprisal, in particular, was rejected. Some claims were rejected because they appeared inconsistent with independent country information which either gave little support to, or contradicted, the appellant’s suggestions that he would be the subject of persecution for particular reasons. The RRT thought it unlikely that the appellant would be persecuted because he was not a person with a high political profile. Nor did the RRT accept that the appellant would be persecuted as a member of a particular social group, namely a “Sinhalese who is able to communicate in the Tamil language” or as a Sinhalese fisherman “able to speak Tamil and in close association with the Tamils”. The RRT considered the significance of a claim by the appellant that he would be harmed by persons who provided money to purchase the boat in which the appellant had travelled to Australia, but who did not themselves travel on the boat, but found that this fear of harm was not related to a ground in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together “the Convention”).

15    As to the question of the appellant’s claim to have been mistreated by the police, the RRT said the following:

135.    The applicant claims that he was the victim of police attention when he was arrested and detained without questioning and then released. He claims that he was photographed before his release and that he would be identified by police because of being photographed. In this respect, the Tribunal does not find the photographing of a person who has been detained as being an act of persecution in the circumstances of this case. The Tribunal rejects a proposition that this would point to a likelihood that the applicant faces a real chance of being targeted for serious harm for a Convention ground in the reasonably foreseeable future. The applicant also claimed that on another occasion he was detained by police who were drunk at the time and that his clothes were removed and he was tied to a chair. The Tribunal finds that while such an incident indicates the standard of the relevant police to be unacceptable by international standards, the Tribunal rejects the claim by the applicant that this incident was associated with particular targeting of the applicant for serious harm for one or more of the Convention reasons. The Tribunal had regard to the country information as to the effectiveness of the Sri Lankan Police where it indicates that it is a police force in which officers are poorly paid and susceptible to corruption at lower levels, and that is [sic] suffers from poor training which has contributed to lack of professionalism, however, the Tribunal does not find that on the evidence of the applicant that he was targeted by police for serious harm for one or more of the Convention grounds. The Tribunal accepts that the police may have suspected that the applicant may have had some involvement with the LTTE which is an illegal organisation and that they made their inquiries and then let the applicant go.

16    It is apparent that the second of the incidents referred to is that which the appellant claimed occurred in January 2009. It is clear that the RRT rejected the suggestion that the incident was associated with particular targeting of the appellant for serious harm for one or more of the Convention reasons. It is apparent that, contrary to the suggestion in the grounds of appeal, the RRT did consider the reason why the appellant was detained in January 2009 and the analysis seems to accept for that purpose that he was mistreated.

17    I think it is clear from the decision of the RRT that it accepted that the appellant may have a real fear of the police. Some of that fear may have been based in a lack of appropriate standards and even the possibility of corruption and brutality. It also appears to have been accepted that the appellant’s fear of the police may have been connected with a suspicion that he was involved in assisting the LTTE. However, the RRT was not satisfied that those matters go so far as to establish that the appellant held a genuine fear of harm for a Convention reason. It appears to me that this was the distinction which the RRT was drawing in the passage which I have set out above.

18    As to the question of double jeopardy the RRT said the following:

143.    The applicant claims he fears that he will suffer harm if he returns to Sri Lanka for reasons of his people smuggling activities. The Tribunal accepts that the applicant may be the subject of interest by Sri Lankan authorities upon his return to that country for reasons of his conviction in Australia as a people smuggler. However, on the evidence before it, the Tribunal is not satisfied that the applicant would be targeted for harm by the Sri Lankan authorities for a Convention ground because of his people smuggling conviction. The Tribunal is satisfied that if the applicant fears double jeopardy in the sense of being charged, convicted, and sentenced for the same crime in Sri Lanka that such a matter is properly the subject of the laws of double jeopardy and that the applicant will be able to raise the defence of double jeopardy to such a charge if laid against him. The Tribunal is satisfied that the country information cited above indicates that the principle of double [jeopardy] applies in Sri Lanka and is enshrined in the Constitution of that country. There is no evidence before the Tribunal to suggest that the relevant laws in Sri Lanka would be applied to the applicant [in] a discriminatory way based on a Convention ground.

19    I note that it is not immediately clear whether the “relevant laws” referred to in the last sentence are the “laws of double jeopardy” referred to earlier or laws in Sri Lanka related to people smuggling. I will return to say something further about that shortly.

20    When the appellant made his application for judicial review to the FMCA, the grounds for that application, as finally amended, referred to some but not all of the matters raised in the grounds of appeal in this Court. Two matters which were raised were as follows:

1.    The Tribunal erred in his interpretation of the term, “for reason of” in Article 1A(2) of the Refugees Convention.

    Particulars

(a)    In finding that the applicant’s detention and mistreated [sic] in police custody in January 2009 was not Convention related, the Tribunal failed to consider why the applicant was in custody in the first place.

…

5.    The errors of law made by the District Court of Western Australia in the course of convicting the applicant of people smuggling offences caused the Tribunal to commit a jurisdictional error.

    Particulars

    …

(c)    The Tribunal therefore erred in finding that the applicant could raise a defense of “double jeopardy” to any prosecution of him for an offence in Sri Lanka, including a political offence in the nature of assisting LTTE suspects to escape the country.

21    The FMCA addressed ground 1 at length. So far as relevant to the first ground raised in this Court the FMCA stated:

77    While this ground refers to an error in interpretation of the term “for reason of”, the first particular involves a contention that the Tribunal failed to consider and to make findings about why the applicant was detained on the third occasion in January 2009. A failure to make findings is not of itself a jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30). While such a failure may reveal some other legal error, such as a failure to have regard to relevant considerations, this is not the nature of the jurisdictional error alleged in ground one.

78    Insofar as this ground does implicitly raise a contention that the Tribunal failed to deal with a claim, it is not made out. The Tribunal dealt with the applicant’s claim to fear harm from the Sri Lankan authorities because of his suspected involvement with the LTTE.

79    The applicant never suggested that he knew why he was arrested in January 2009. On the contrary, in response to the delegate’s question about why he was detained in January 2009 he responded “Don’t know” and then explained the circumstances in which he was released. There was no factual basis or necessity for the Tribunal to make a specific separate finding on that particular issue in order to address all the integers of the applicant’s claimed fear of the authorities because of his suspected involvement with the LTTE.

80    In these circumstances it was not necessary for the Tribunal to make an express finding as to the reasons for the detention. It sufficiently addressed this issue in its acceptance that the police may have suspected that the applicant had some involvement with an illegal organisation (the LTTE), but made their inquiries and let him go. It also dealt with the abuse the applicant suffered when detained and mistreated by drunken police, but found that while this reflected “unacceptable” professional standards on the part of the police, “this incident” (which clearly included both the detention and the subsequent mistreatment) was not “associated with particular targeting of the applicant for serious harm for one or more of the Convention reasons”.

22    Although the grounds of appeal in this Court were not expressed in exactly this way, it was contended in written submissions in support of the appeal in this Court that the RRT had failed to find why the appellant had been detained by the police on the last occasion, and thereby made a jurisdictional error. It was submitted on the appeal that the only explanation for the third detention (in January 2009) about which the appellant gave evidence was that the appellant must have been suspected of assisting the LTTE. That was said to be the only logically probative evidence of a motive by the police.

23    It does appear that the summary given by the RRT in [135] (set out earlier) of the appellant’s interaction with the police may not have faithfully reflected the precise details given by the appellant in his evidence. The appellant claimed to have been questioned on the second occasion (when he was photographed) before being released. By contrast, the appellant made no claim about specific questioning on the third occasion when he was beaten and detained for two days. However, any factual error of this kind does not suffice, in my view, to establish or relevantly support a suggestion of jurisdictional error about these issues.

24    First, these issues concern findings about facts which are within the jurisdiction of the RRT to evaluate for their existence and significance. Secondly, I do not accept that the RRT was obliged to assign a particular motive to the police in relation to either occasion. Thirdly, it appears to me that the argument pays insufficient regard to the real character of the RRT’s assessment. It is true that the RRT rejected the claim by the appellant that the incident “was associated with particular targeting of [the appellant] for serious harm for one or more of the Convention reasons”. However, it is also the case that the RRT accepted “that the police may have suspected that [the appellant] may have had some involvement with the LTTE which is an illegal organisation”. The RRT, therefore, accepted the premise advanced in the submissions on appeal. It nevertheless rejected the claim that the incident was associated with the appellant in a way that gave rise to a well-founded fear of persecution for a Convention reason. This was classically a matter of evaluation for the RRT based on all the information which it had before it. I am not able to see how the treatment of this issue reveals a jurisdictional error on the part of the RRT. In particular, I reject the submission that the finding made “was not based on a proper, genuine and realistic consideration of the evidence”. I also do not agree that the Tribunal was required to assign a specific reason to the third detention. What it was required to do was to evaluate the appellant’s claims, taking into account all the evidence which he gave and the other information which it had. The precise errors of fact which I earlier identified did not, in my view, cause the RRT’s assessment of this issue to miscarry or reveal that it made a jurisdictional error.

25    I therefore do not accept the first ground of appeal.

26    As to the second ground, the position is more complicated. It appears apparent from the decision of the RRT that the appellant advanced as part of his case a concern that he would be punished for people smuggling in Sri Lanka. The RRT reassured the appellant that under the principle of double jeopardy, which is embodied in the Sri Lankan Constitution, he would not be prosecuted in Sri Lanka for an offence for which he was convicted and imprisoned in Australia. The appellant accepted this indication and (one might think co-operatively) withdrew any specific reliance on this issue. The RRT knew that the appellant’s conviction was under appeal. It was supplied with copies of documents filed on the appellant’s behalf in the Court of Appeal of the Supreme Court of Western Australia in his appeal against his conviction for people smuggling. The RRT recorded that in the further submission received by it on 5 January 2012 the appellant’s position about this issue was as follows:

[H]e worried about prosecution and imprisonment in Sri Lanka upon returning however he feels enlightened about the double jeopardy principle and so is not prepared to rely on this aspect of his claim.

27    When the appellant’s conviction was quashed shortly after the decision of the RRT, the DPP decided not to further prosecute him and he was not required to face a further trial. Obviously enough this was not a matter of which the RRT was aware at the time of its decision.

28    After a discussion of the competing submissions the FMCA dealt with this issue as follows:

135    Although the conviction has been set aside, and even if the applicant could now not raise a defence of double jeopardy to any prosecution in Sri Lanka, that does not establish that the Tribunal erred in a manner that constituted jurisdictional error. Contrary to the situations considered in the authorities relied on by the applicant, this is not a case in which the Tribunal “acted on” a conviction that was later set aside. Rather it made findings about whether the applicant had a well-founded fear of persecution based on facts in existence at the time of its decision. Moreover what was in issue was whether the applicant had a well-founded fear of persecution for a Convention reason arising out of a risk of prosecution. Even if the Tribunal could be said to be in error in its discussion of double jeopardy, its reasoning in this respect was not the basis for its finding about an absence of a Convention reason for any fear of harm for reason of the applicant’s people smuggling activities. The Tribunal’s lack of satisfaction that the applicant would suffer harm for a Convention reason was not based on the finding about the availability of the defence of double jeopardy, but rather on the absence of evidence that Sri Lankan laws in relation to people smuggling would be applied to the applicant in a discriminatory way for a Convention reason.

29    In principle, I accept that the RRT cannot be faulted or criticised for having dealt with the circumstances as they were at the time of its decision. It was not obliged to wait until it was clear whether the appellant’s conviction would be overturned. In any event, the order made by the Court of Appeal was that the appellant should be retried. It was the administrative decision by the DPP not to further prosecute which has resulted in the appellant not carrying a conviction for people smuggling in this country. Accordingly, in my view, subject to the discussion which follows, no jurisdictional error has been identified in the approach which the RRT took, nor has any error been identified in the analysis of the issue by the FMCA.

30    There is, however, a troubling aspect to the way in which matters developed. In its discussion with the appellant, as recorded in its decision, it is apparent that the RRT raised with the appellant the significance and utility of his claim to fear persecution in Sri Lanka by reason of his people smuggling activities. I have been concerned about the possibility, as submitted for the appellant, that by failing to consider the possibility that the appellant’s appeal against his conviction might be upheld, the RRT failed to address an essential integer of the appellant’s claims having reassured him he could not be exposed to prosecution in Sri Lanka for people smuggling, or would have a good defence if he was prosecuted, by reason of the principle of double jeopardy.

31    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 a Full Court of this Court referred to the judgment of the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 saying (at [55]):

55    Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.

32    The Full Court went on at [63]:

63    It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome.

33    In the passage from its decision which I set out earlier it is apparent that there were two aspects to the RRT’s treatment of the issue of possible prosecution for people smuggling in Sri Lanka. One was that the principle of double jeopardy would protect the appellant from further prosecution for people smuggling in Sri Lanka. The second was that there was no evidence to suggest that the laws in Sri Lanka would be applied to the appellant in a discriminatory way based on a Convention ground. The second aspect may represent an independent reason for rejecting a claim of potential persecution. The FMCA appeared to think that it did. If that conclusion is correct then the double jeopardy issue was not determinative. However, if the FMCA’s understanding of what the RRT was saying, and which laws were being referred to, is incorrect then further analysis is required.

34    As I indicated earlier, one available reading of the last sentence of the decision of the RRT at [143] is that it provided an independent foundation for concluding that, questions of double jeopardy aside, there would be no discriminatory treatment of the appellant in Sri Lanka arising from his people smuggling activities which was based on a Convention ground. That is the construction which appealed to the FMCA (at [135]).

35    However, there is some reason to doubt that this is the correct view of what the RRT was saying and, on reflection, I have come to the view that it is not. I referred earlier to the fact that, in the same passage, the RRT had earlier referred to “the laws of double jeopardy”. It seems likely that these are the laws referred to in the last sentence of the extract also. This view finds support elsewhere. Earlier in its decision, when dealing with the questions, first, of “information on the treatment of convicted people smugglers who have served a prison sentence in Australia” and secondly, the question “whether there are laws in Sri Lanka which provide for the prosecution of people smugglers”, the RRT said the following:

Information on the treatment of convicted people smugglers who have served a prison sentence in Australia

113.    No information was found on the treatment of convicted people smugglers who have served a prison sentence in Australia.

Whether there are laws in Sri Lanka which provide for the prosecution of people smugglers.

114.    No information was found on the laws in Sri Lanka which provide for the prosecution of people smugglers. A 2009 media release on the Australian High Commission to Sri Lanka’s website, however, states that Sri Lanka was reviewing its people smuggling related laws with the assistance of Australia and changes to the Sri Lankan laws would be introduced soon. From April 2009 to the time of the media release, it was reported that the Sri Lankan authorities had arrested 85 alleged people smugglers. The media release adds “Sri Lankan and Australian authorities will continue to work together to ensure those responsible for people smuggling are brought to justice”. Furthermore, Sri Lankan and Australian authorities had been working together since 2009 to “break the criminal syndicates behind the people smuggling business” and “[n]o vessels from Sri Lanka have been able to reach Australia since November 2009”.

115.    The media release details Sri Lanka’s response to Australia’s sentencing of a Sri Lankan for people smuggling in September 2009. Sri Lanka’s Secretary of the Ministry of Justice, Mr Suhada Gamalath, responded to the sentencing by saying that the conviction “gives great encouragement to our own authorities to intensify our activities against people smuggling from Sri Lanka”. He added “Our two governments have been relentlessly working together to bring an end to people smuggling. We have launched a comprehensive, strong campaign against the scourge of people smuggling, particularly in the most vulnerable areas of the country”.

Whether the principle of double jeopardy applies in Sri Lanka in respect to the applicant’s conviction for people smuggling in Australia

116.    While no information was found specifically on whether double jeopardy applies in Sri Lanka in respect to the applicant’s conviction for people smuggling in Australia, it is likely to apply as the principle of double jeopardy is embodied in the Sri Lankan constitution. Defendants can plea for protection against double jeopardy.

117.    No specific information was found on the laws in Sri Lanka which provide for the prosecution of people smugglers. As such it cannot be determined whether such laws are laws of general application.

(Emphasis added.)

36    The passages I have emphasised suggest that the last sentence in [143] of the RRT decision is more likely to refer to the non-discriminatory application of the principle of double jeopardy, rather than laws about people smuggling.

37    One difficulty with the analysis by the RRT, therefore, is that its own findings about the likely application of the double jeopardy principle were falsified. Further, the appellant had been persuaded to withdraw any reliance on a concern that he might be prosecuted for people smuggling in Sri Lanka by what the RRT suggested was the probable application of the double jeopardy principle to his particular circumstances. It cannot be assumed that the appellant would not have wished to rely on a fear of prosecution in Sri Lanka, if it was relevant to do so, when it became clear that his appeal would be upheld, his conviction set aside and no further trial in Australia would take place, leaving him unprotected by the double jeopardy principle.

38    There is no doubt that the Tribunal’s attention was drawn to the appeal against the appellant’s conviction. At [69] of its decision the RRT said:

69    On 20 October 2011, the Tribunal received a further written submission on behalf of the applicant. This submission includes a restatement of the applicant’s protection claims and also includes a copy of the applicant’s criminal appeal application to the Supreme Court of Western Australia against the conviction of the applicant in the District Court of Western Australia.

39    It is clear that provision of that material to the RRT raised the possibility that the appellant’s conviction may not remain in place. Originally the appeal was referred to in correspondence to the RRT to deflect any suggestion that the appellant may not satisfy the “character test”, but clearly enough, in light of the discussion which occurred between the RRT and the appellant, the appeal had significance also for the whole question of double jeopardy.

40    Equally clearly, the question of the significance of the appellant’s conviction, and the protection of the double jeopardy rule which would be available to him in Sri Lanka, was a matter of explicit consideration by the RRT and response by the appellant. In the written submission forwarded to the RRT on 5 January 2012 the following was said, first under the heading “Refugee Claims”:

2.2.3    He worried about prosecution and imprisonment in Sri Lanka upon returning. It is because he has assisted Sri Lankans to seek asylum in Australia and some eight people have successfully secured the Protection visa. Having heard the explanation from [the RRT] about the use of his sentencing in Australia as a defence if the Sri Lankan authority prosecutes him for his human trafficking offence, he now feels much enlightened about the risk of “double jeopardy” in Sri Lanka. So he is not prepared to rely on this claim.

then under the heading “Invitation to comment on Adverse Country Information”:

3.3    [The RRT] explained to the Claimant that he will be able to use his sentence of human trafficking in Australia (for which he has served/would have served) as a defence if he is to be prosecuted by the Sri Lankan government for the same offence upon returning due to the principle of “double jeopardy” which also applies in Sri Lanka.

then under the heading “Responses”:

4.2    As regards the issue of “double jeopardy”, he accepted that if its principle applies in Sri Lanka he may then use it as a defence against the prosecution by the Sri Lankan authority.

41    Having regard to the principles stated in NABE, if the claim to fear harm from the Sri Lankan authorities arising from his people smuggling activities was an essential integer of the appellant’s claim to be a refugee, and for a protection visa, then it was necessary for the RRT to deal satisfactorily, and completely, with that aspect of the claim. Upon the assumption in the foregoing sentence it was, in my view, not open to the RRT to proceed upon an assumption that the appellant’s conviction would remain in place without addressing the possibility that the appeal might succeed or waiting for its result. To that extent I accept that the criticism by the appellant of the RRT is well-founded. However, the premise upon which the criticism depends also requires further examination, before it is confirmed as truly justified.

42    It is clear from the passages of the RRT decision to which I have already referred that it identified no aspect in respect of which the appellant might fear harm from Sri Lankan authorities for a Convention reason arising from his people smuggling activities. No claim of that kind appears to have been made by the appellant before the RRT – i.e. a claim relating people smuggling activities to a genuine fear of harm for a Convention reason. The relevant statement by the appellant, as recorded by the RRT was:

50    The applicant said that if he goes back to Sri Lanka the government will consider that he has been involved in people smuggling and that he could be harmed because of that. The Tribunal referred to the fact that people smuggling appears to be a criminal offence in Sri Lanka. The applicant agreed that it is.

43    No Convention reason which might be engaged by the appellant’s people smuggling activities was identified on the appeal either. The submission was that the existence of jurisdictional error should result in the matter being remitted to the RRT for further attention unless that could make no difference to the outcome. The appellant submitted that this was not such a case because there was clearly room for further investigation of the legal position in Sri Lanka and whether it operates in a way that engages the Convention. In my view this is not the appropriate way to approach the question. The question of a connection with the Convention is not to be seen as a matter for further investigation by the RRT. A relevant connection must appear satisfactorily from the claims which were before the RRT for its consideration. It is clear, in my view, that there was no claim expressed in a way which should have engaged the RRT’s attention to the question of whether the appellant’s people smuggling activities could give rise to the genuine fear of harm for a Convention reason if he was returned to Sri Lanka with his conviction set aside.

44    Ultimately, therefore, I have come to the view that no jurisdictional error has been revealed by what happened in relation to the issue of double jeopardy. On the findings made by the RRT, even though its assumptions about the application of the double jeopardy principle have been falsified, it has not been shown that any relevant law might be applied in a discriminatory way for a Convention reason.

45    In those circumstances I conclude that relevant error in the judgment of the FMCA has not been shown; neither has jurisdictional error in the decision of the RRT been shown. The appeal must be dismissed. It is appropriate to dismiss it with costs.

Associate:

Dated:    14 December 2012