FEDERAL COURT OF AUSTRALIA

SZSXM v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1251

THE COURT ORDERS THAT:

1.    The first respondent’s name is amended to ‘Minister for Immigration and Border Protection’.

2.    The application for leave to appeal is dismissed.

3.    The applicant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

1    This is an application for leave to appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 3 September 2013 summarily dismissing the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 14 May 2013.

Background and Claims

2    The applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 17 February 2012. On 22 May 2012 the applicant applied for a protection visa. On 17 August 2012 a delegate of the first respondent refused the application. The applicant’s claims that form the basis for his protection visa application are detailed in paragraphs [19]-[30] of the Tribunal’s reasons. They are also summarised at paragraphs [2]-[6] of the reasons of theprimary judge. In brief terms the applicant claims that in 2010 several people came to stay at his house, including two people he suspects were from the Liberation Tigers of Tamil Elan (LTTE or Tamil Tigers). He says that these people gave him valuable goods such as gold, laptops and a camera for safe-keeping. He later found out that those goods belonged to people detained in the Vavuniya camp in Sri Lanka.

3    The applicant’s involvement with these suspected Tamil Tigers and the goods they entrusted him with came to the attention of the Sri Lankan Criminal Investigation Department (CID) who confiscated the valuables and detained the applicant for three days. The applicant’s father then found out that the goods belonged to the LTTE and paid a bribe to secure the applicant’s release. The applicant says that his father was subsequently shot dead in May 2011. He says he reported the matter to the police but nothing came of the investigation. The applicant then fled to the Ivory Coast fearing for his safety. He returned to Sri Lanka in 2012 due to problems he encountered in the Ivory Coast. He says he went into hiding in a church in Sri Lanka for about six months and then left for Australia.

4    The applicant claims to fear harm in Sri Lanka from government authorities, the CID, the police, the army, the security services and groups that support them, including the Karuna group, who he claims perceive him as a Tamil Tiger supporter. He also claims to fear harm from various other people who were somehow involved in a dispute over the gold that was given to him. He says that as a failed Tamil asylum seeker with perceived links to the LTTE he will be detained and tortured upon his return to Sri Lanka.

The Tribunal’s Decision

5    The Tribunal accepted, on the basis of independent country information, that failed asylum seekers and particularly young men believed to be Tamil Tigers or Tamil tiger sympathisers, faced difficulty upon their return to Sri Lanka. On this basis the Tribunal accepted that the applicant would, if returned to Sri Lanka, be questioned and would encounter some harassment. The Tribunal did not accept, however, that this treatment would amount to serious harm or that laws of general application would be applied to him in a discriminatory fashion based on his Tamil ethnicity or his perceived association with the LTTE. Accordingly, it would not amount to persecution for the purposes of the Refugees Convention: s 91R(1) and (2) of the Migration Act 1958 (Cth) (the Act).

6    The Tribunal also did not accept other aspects of the applicant’s factual claims and evidence that formed the basis of his claim that he feared persecution in Sri Lanka on the basis of his links or perceived links to the LTTE. The Tribunal’s rejection of much of what the applicant said in his application and evidence before the Tribunal was based on the implausibility of parts of his story, inconsistencies in some of his evidence, the applicant’s inability to recall certain important details and other inadequacies in his evidence and the way he gave it before the Tribunal. The Tribunal formed an adverse view of the applicant’s credibility as a witness and the reliability of his evidence.

7    The Tribunal found it particularly significant that the applicant had not faced any difficulties when he re-entered Sri Lanka from the Ivory Coast in 2011 or when he departed Sri Lanka for Australia in 2012. The Tribunal was of the view that, if the applicant was of any interest to the CID as he claimed, he would not have been able to re-enter Sri Lanka in 2011 without coming to the attention of the immigration or customs authorities.

8    The Tribunal did not accept the applicant’s explanation for his seeming ability to leave and re-enter Sri Lanka without difficulty or incident. The applicant claimed that his uncle arranged for someone to get him through the airport. The Tribunal noted, however, that the applicant did not detail this important event in his protection visa application. The Tribunal also considered the applicant’s ability to remain living safely in Sri Lanka from the end of May 2011 to February 2012 to be inconsistent with his claim that he will suffer serious or significant harm if he is returned to Sri Lanka. The Tribunal rejected the applicant’s evidence that he was hiding in a church during this period. The Tribunal noted the applicant’s confusion in his evidence regarding the name of the church in which he hid and his inability to recall the name of the Reverend at that church.

9    The Tribunal did not accept that the applicant had ever been detained by the CID in 2010 or that he left Sri Lanka because the CID had threatened him. Nor did it accept that the applicant’s father had ever been killed for the reasons asserted. The Tribunal’s rejection of this evidence was based in part on the manner in which the applicant responded to questions put to him during the Tribunal hearing. It was also based on the Tribunal’s findings concerning the applicant’s return to Sri Lanka in 2011 and the finding that he was not a credible witness.

10    Given the rejection of the factual basis of many of the applicant’s claims, particularly those linking him with the LTTE, the Tribunal did not accept that the applicant would be subject to serious or significant harm if he was returned to Sri Lanka. The Tribunal accordingly affirmed the decision of the delegate to refuse the grant of a protection visa to the applicant.

The Proceedings in the Federal Circuit Court of Australia

11    In the Federal Circuit Court of Australia the applicant relied on three grounds of challenge to the Tribunal’s decision. Those grounds, as set out in his application, were:

  1.    The RRT failed to access my convention claims in a proper manner.

2.    The RRT failed to take into account my serious harms that I fear to return to Sri Lanka.

3.    The RRT went beyond their jurisdiction and failed to [follow] proper procedure required by law.

12    In the proceedings before the Federal Circuit Court the applicant relied on a short affidavit. That affidavit added nothing of relevance or significance to his case.

13    The learned Federal Circuit Court judge rejected each of the grounds advanced by the applicant. His Honour found that no jurisdictional error had been established.

14    In relation to grounds 1 and 2, the applicant submitted to the primary judge that the Tribunal had overlooked the issue of the risk of harm he faced, having housed two persons who were later revealed as Tamil Tiger operatives, and that the Tribunal had not properly considered his claims concerning the dispute over the gold and the death of his father. The primary judge found, however, that both of these claims had been considered by the Tribunal. The appellant’s real complaint was simply that that Tribunal had not accepted his claims.

15    In relation to ground 3, the primary judge noted that the applicant had not been able to point to any procedural error made by the Tribunal, other than the asserted failure to consider his claims. He concluded as follows in relation to the assertion that the Tribunal had failed to assess the applicant’s claims in a proper manner or failed to follow proper procedures:

The Tribunal met its obligation to conduct a hearing pursuant to s.425 of the Migration Act 1958 (Cth) (Migration Act). It does not appear that there was any information requiring disclosure to him pursuant to s.424A of the Migration Act. The Tribunal clearly understood the task that it had to perform, acted reasonably and made conclusions open to it on the material before it. Nothing was overlooked.

16    Having rejected the applicant’s grounds of review and the submissions advanced in support of them, the Federal Circuit Court judge dismissed the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001. That rule provides as follows:

44.12     (1)     At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application…

           (2)    To avoid doubt, a dismissal under paragraph(1)(a) is interlocutory.

The Appeal Proceedings

17    Because the judgment of the Federal Circuit Court is an interlocutory judgment, leave to appeal is required: s 24(1A) Federal Court at Australia Act 1976 (Cth). The judgment does not fall within the exception in s 24(1C), which concerns, inter alia, interlocutory judgments affecting “the liberty of an individual” because it does not involve orders which would subject the applicant (or anyone else) to direct incarceration or deprivation of liberty: Talacka v Talacko [2010] FCA 239 at [43]; Perg Gao v Fair Work Ombudsman [2013] FCA 754 at [18].

18    On 13 September 2013, the applicant filed an application for leave to appeal that advanced three grounds. Those grounds are:

1.    The RRT fell into jurisdictional error in failing to apply the correct test for the detention, question and harassment when I returned to Sri Lanka as a Tamil failed asylum seekers.

2.    The RRT fell into jurisdictional error in not putting to me fully for comment the reports about failed Tamil asylum seekers who are deported to Sri Lanka.

3.    I have information to submit to the court that how mistreated of Tamil failed asylum seekers on arrival in Sri Lanka.

19    The applicant has filed an affidavit in these proceedings dated 12 September 2013. The affidavit states that the applicant will file and serve an amended notice of appeal when required. On 13 September 2013, the applicant filed a draft notice of appeal. It contains three proposed grounds of appeal. Those grounds of appeal are identical to the grounds relied on by the applicant in the Federal Circuit Court.

20    The applicant has also filed a further draft notice of appeal on 1 October 2013. Somewhat unhelpfully, this notice of appeal raises a further three grounds of appeal. Those three grounds are:

1.    The RRT has accepted that I have departed Sri Lanka illegally and has further accepted being a Tamil asylum seeker returning from western country I will be questioned and encounter some harassment on return to Sri Lanka.

2.    The RRT has not considered my claim in regard to my detention on my arrival in degrading conditions for time periods up to months in Negombo prison.

3.    The RRT has failed to deal with my claim that I could be held for some months in Negombo prison.

21    At the hearing of the application the applicant made oral submissions that were global in nature and not directed to any particular grounds in the application for leave or the draft notices of appeal. The applicant was asked to provide submissions as best he could in relation to each of the grounds in his application for leave and the draft notices of appeal. His submissions were, however, essentially the same in relation to each of the grounds or proposed grounds. In short, the applicant repeated his claim that if he was to return to Sri Lanka he would be arrested and tortured, that all Tamil people are mistreated in Sri Lanka and that he would be tortured because he had provided accommodation to the LTTE. The applicant submitted that the Tribunal did not take these claims into account.

22    In reality, as effectively conceded by the applicant during his oral submissions, his real complaint was that the Tribunal did not believe him or accept his claims.

23    Despite the fact that the applicant’s submissions were global in nature, I will address each of the grounds raised by the applicant in the application for leave to appeal and the two draft notices of appeal. As will be seen, there is a good deal of overlap between these grounds.

24    In relation to ground 1 of the application for leave to appeal the applicant provided no particulars or meaningful submissions in support of his contention that the Tribunal failed to apply the correct test. This was not a ground argued before the Federal Circuit Court. That alone might be a reason to refuse leave to appeal in relation to this ground. In any event, the ground has no merit. It is clear from the Tribunal’s reasons at paragraphs [4]-[18] that the Tribunal did apply the correct test and the relevant law in relation to whether the applicant had satisfied the criteria for a protection visa.

25    In relation to ground 2 of the application for leave to appeal, the applicant did raise in the Federal Circuit Court an argument that there had been a failure to follow proper procedures. The applicant did not, however, contend in the Federal Circuit Court that the Tribunal had failed to put to him for comment reports concerning failed asylum seekers who are deported to Sri Lanka. At the hearing in this Court, the applicant was unable to provide any detail in relation to the reports that he said were not put to him for comment. It is clear, from the Tribunal’s reasons, however, that the Tribunal did rely on various country reports concerning failed Tamil asylum seekers and their treatment upon return to Sri Lanka. These reports and the Tribunal’s acceptance of them was generally favourable to the applicant’s case.

26    In any event, those reports were not required to be put to the applicant under s 424A of the Act because they fell within the terms of s 424A(3)(a) of the Act, which provides as follows:

424A    (3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of person of which the applicant or other person is a member.

27    There was accordingly no failure to comply with s 424A of the Act. Nor was it suggested, let alone demonstrated, that the Tribunal failed to comply with any other procedure in Division 4 of Part 7 of the Act. Because Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with (see 422B of the Act), there is no scope for the applicant to argue that there was some more general failure to afford him procedural fairness or natural justice in relation to the way it dealt with the country reports. In any event, it is difficult to see how there could be any unfairness given that the reports were accepted as being favourable to the applicant’s case.

28    In relation to ground 3 of the application for leave to appeal, it is somewhat unclear what this ground means. In oral submissions in this Court the applicant submitted that whilst he put all of his claims to the Tribunal, the Tribunal did not have regard to those claims. He did not suggest that he had any further information to provide to the Court. If he did have further information, it was incumbent on him to put that information before the Tribunal. It was not a matter for the Tribunal to make the applicant’s case for him.

29    In any event, it is clear from a fair reading of the Tribunal’s reasons that the Tribunal did give consideration to all of the applicant’s claims, including his claims concerning the mistreatment of failed Tamil asylum seekers upon their return to Sri Lanka.

30    As already noted, the Tribunal’s findings in relation to the treatment of failed Tamil asylum seekers were generally favourable to the applicant. The basis for the Tribunal’s decision that this did not provide a basis for the grant of a protection visa was that the Tribunal was not satisfied that any mistreatment that the applicant would suffer if he returns to Sri Lanka would amount to serious harm or involve discriminatory conduct. That finding was based on the Tribunal’s rejection of the applicant’s claim that the Sri Lankan authorities believed he had links to the LTTE or that he was otherwise of interest to the Sri Lankan authorities. That finding in turn flowed from the Tribunal’s rejection of many of the applicant’s specific factual claims and its adverse findings about the applicant’s credibility.

31    In relation to the draft notice of appeal filed on 13 September 2013, these grounds of appeal essentially repeat the grounds relied upon in the Federal Circuit Court. These grounds have no merit for the reasons given by the learned primary judge. The applicant did not advance, let alone establish, any error in the way the Federal Circuit Court dealt with these grounds. No error is disclosed on the reasons for judgment of the Federal Circuit Court.

32    In relation to grounds 1 and 2, a fair reading of the Tribunal’s decision and reasons reveals that the Tribunal gave careful attention to all of the applicant’s claims and the evidence that he gave to the effect that he feared persecution in Sri Lanka. Whilst the applicant may, and undoubtedly does, disagree with the Tribunal’s findings in this respect, the Federal Circuit Court does not have jurisdiction to consider the merits of the Tribunal’s decision. The primary judge correctly found that the Tribunal was not in error, let alone jurisdictional error, in relation to its findings.

33    In relation to ground 3 of the first of the draft notices of appeal, the applicant was again unable to give any details or particulars of the proper procedures required by law that he said the Tribunal did not follow. For the reasons given by the primary judge, there is no basis for the applicant’s contention that the Tribunal failed to follow any procedure required by law.

34    In relation to the draft notice of appeal filed on 1 October 2013, the three grounds of appeal in that draft notice should be read together.

35    What the applicant appears to contend is that the Tribunal, having found that failed Tamil asylum seekers were often detained and questioned upon their return to Sri Lanka, should have accepted his claims that it was likely that he would be detained for some months upon his return to Sri Lanka. In the applicant’s oral submissions in relation to these grounds it was apparent again that the applicant’s real complaint concerned the merits of the Tribunal’s factual findings. A fair reading of the Tribunal’s reasons reveals that it did consider the applicant’s claims. Having considered them, it rejected them. There is no basis for any contention that the Tribunal failed to properly exercise its jurisdiction in relation to the way it dealt with the claims.

36    It follows that none of the grounds or submissions that the applicant has put forward on this application have any merit. I am unable to discern any error made by the Federal Circuit Court in dismissing the applicant’s application. Nor am I able to discern any jurisdictional error on the part of the Tribunal. Accordingly, the application for leave to appeal should be dismissed.

37    No reason has been advanced as to why costs should not follow the event. Accordingly the applicant must pay the costs of the first respondent as agreed or assessed.

38    The Court has been advised that the name of the first respondent has been changed to the Minister for Immigration and Border Protection. To the extent that it is necessary, I will order that the relevant documents will be amended to reflect that change.

Associate:

Dated:    20 November 2013