FEDERAL COURT OF AUSTRALIA

DZADS v Minister for Immigration and Border Protection [2014] FCA 1128

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay to the first respondent costs of and incidental to the appeal, fixed at $6639.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant is a 29 year old Sri Lankan national of Tamil ethnicity from the village of Udappu. He arrived in Australia at Christmas Island on 27 May 2012 as an irregular maritime arrival.

2    It appears the first respondent (the Minister) exercised his power under s 46(2) of the Migration Act 1958 (Cth) (the Act) to allow the appellant to apply for a protection visa. The Minister in submissions did not gainsay that assumption.

3    On 5 August 2012, the appellant applied for a protection visa under the Act. He had the assistance of migration advisors. On 18 September 2012, a delegate of the Minister refused to grant the appellant a protection visa.

4    On 18 September 2013, the second respondent (the Tribunal) affirmed the delegate’s decision.

5    On 23 October 2013, the appellant applied to the Federal Circuit Court (the FCC) to set aside the Tribunal’s decision for jurisdictional error. On 27 May 2014, the FCC dismissed that application.

6    This is an appeal from that decision.

7    The outcome of the appeal turns upon the proper construction of the reasons for decision of the Tribunal. It is accepted by the Minister that, in one respect, the Tribunal erred in law in the last sentence of [52] of its reasons.

8    However, the Minister successfully argued before the FCC that that error of law is not one which affected the outcome of the application, but was an error made when considering an alternative (and subsequently considered) basis for affirming the delegate’s decision.

9    Both on this appeal and before the FCC the appellant had the considerable benefit of counsel appearing pro bono. That enabled his case for judicial review of the Tribunal decision to be put as effectively and persuasively as it could be put.

10    However, for the reasons which appear below, I agree with the interpretation of the Tribunal’s reasons as found in the FCC. I therefore agree that the acknowledged error did not have the consequence that the Tribunal’s decision was affected by that error. It was an error on an incidental and alternative basis for considering the appellant’s claim to be a refugee.

11    Accordingly, I dismiss the appeal with costs.

12    It is, as I have foreshadowed, important to explain why I have reached that view.

THE APPELLANT’S CLAIMS

13    In the Declaration of his original claims lodged with his protection visa application, the appellant claimed he feared persecution resulting from business dealings with Sinhalese clients. The appellant incurred business debts because of the refusal of a Sinhalese man, Suranka, to pay money he owed to the appellant.

14    The appellant there claimed that, when he attempted to recover the debt, Suranka threatened to report the appellant as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and told the appellant that he would be abducted and imprisoned or killed. The appellant claimed that Suranka knew he was a Tamil from Udappu and that the Sri Lankan authorities were suspicious of Tamils in this area, believing they had colluded with the LTTE during the civil war in Sri Lanka. The appellant claimed that Udappu villagers were all Tamil, and that Udappu was surrounded by Sinhalese villages and that every time there was a problem in the area with opposition to the Sri Lankan authorities the villagers of Udappu were suspected. Thus, not only did the appellant claim that the Sri Lankan authorities would not protect him from those he owed money to, but he said they would in fact arrest and mistreat him because he would be suspected of actively supporting the LTTE.

15    In his Declaration the appellant also claimed that, because he could not recover the money owed by Suranka, he fell into debt with other Sinhalese clients who also threatened to accuse him of being a supporter of the former LTTE. He claimed these people reported him to the police for not paying his debts. When he then tried to recover his debt from Suranka, Suranka again threatened to report him to the authorities as a LTTE member or supporter.

16    The appellant claimed to fear being abducted, tortured and possibly killed if the authorities believed he was a LTTE supporter or former member. He claimed the authorities already suspected he might have been a supporter because he was a Tamil from Udappu.

17    It is significant, therefore, to note that the appellant made separate claims of “threats to report” by the Sinhalese people he owed money to, and by Suranka who owed money to him. The threat by his debtor Suranka can conveniently be called “the Suranka threat to report claim”.

18    The appellant also made other claims relating to a dispute with his uncle over land, and as a returned failed asylum seeker who left Sri Lanka illegally (the returnee claim). Those claims were rejected by the delegate and by the Tribunal, for reasons which it is not necessary to explore, as they do not give rise to any issue on the appeal.

19    In a written submission to the delegate the appellant’s advisors claimed that Sri Lanka “has a long history of persecution of people suspected of even the slightest support of, or connection with, the LTTE”. The submission included country information that those suspected of ties to or links with the LTTE had been detained by the Sri Lankan authorities and subjected to torture.

THE DELEGATE’S DECISION

20    The delegate found the appellant presented as a credible witness who satisfied the delegate that he was “recalling evidence within his personal experience”. However, the delegate did not find the claims relating to his business dealings with Sinhalese clients to be Convention related.

21    The delegate acknowledged that Tamils returning to Sri Lanka who have connections with the LTTE were at significant risk, and that the appellant genuinely feared what would happen to him on his return. However, it found the applicant did not have such a profile as would in fact expose him to such a risk. In short, that fear was not well-founded.

22    In considering complementary protection for the business dealing claims based upon the fear of the creditors reporting the appellant as a LTTE sympathiser as an inducement to repay them, the delegate found that the lack of urgency on the part of the appellant to pay back his own debt when he had the capacity to do so negated the seriousness of the claimed threat. The delegate made no separate finding in relation to the threats made by Suranka.

THE TRIBUNAL PROCEEDINGS

23    In a further Declaration to the Tribunal, the appellant made additional claims of specific harm to himself and his family relating to his business debts at the hands of the villagers, navy personnel, the CID and the police. The Tribunal expressed doubts about the credibility of these claims of specific harm and ultimately rejected them. The Tribunal also rejected the additional claim that Suranka would pay someone to kill him. Those matters also do not require further consideration, as they are not raised on the appeal.

24    Significantly for the ground of appeal, the Tribunal dealt separately with the appellant’s claims of threats to report the appellant as a LTTE supporter made by his creditors on the one hand, and by the debtor Suranka on the other.

25    The Tribunal accepted that the appellant, in the course of his business dealings up to 2012, was owed money by Suranka. It also accepted that by about April 2012 he had accumulated debts to others.

26    However, it was generally concerned about the credibility of his detailed evidence at the two occasions he attended to give evidence and to make submissions. It explained why that is so. As the appellant accepts the findings of fact ultimately made by the Tribunal cannot be successfully challenged on the ground of jurisdictional error, again it is not necessary to go through those reasons.

27    It is sufficient to focus on the findings which, it is argued, provide the basis for the platform of claimed jurisdictional error.

28    Under the heading “Debts and losses”, the Tribunal recorded in some detail the appellant’s evidence and its concerns about parts of that evidence. Then it found that the appellant’s failure to pay the significant monies available to him, apparently during the latter part of 2012, to reduce his debts detracted from “the credibility of his claims regarding the threats made against him and the fear of further reprisal”.

29    Under the heading “Threats”, after reciting parts of evidence, the Tribunal found that his detailed evidence about threats from his creditors conflicted with some earlier evidence, and that he had conflated various claims so as to detract from the credibility of his claims of threats. It specifically did not accept that his creditors had threatened to report him to the Sri Lankan authorities as a member or supporter of LTTE.

30    The appellant gave evidence that he feared that Suranka, as a significant debtor to the appellant, would pay someone to kill the appellant. That evidence was the subject of adverse comment by the Tribunal.

31    Separately, under the heading “Harassment of the applicant’s family”, the Tribunal rejected much of the appellant’s evidence about the authorities’ harassment of his family including his claims to have been attacked by villagers, or by the naval authorities at the behest of his uncle due to a property dispute, or by the police at the instigation of one of his creditors or that the local police had threatened him if he did not repay money he owed, or that Suranka would pay someone to kill him if he continued to try and recover Suranka’s debt to him. It did not accept that other members of his family had been threatened or beaten as he claimed, or that his father had disappeared through the actions of the authorities as he claimed.

32    The Tribunal then, under the heading “Is there a real chance that the applicant would be persecuted if he returned to Sri Lanka?” considered that question. It did so under four subheadings: Business problems; Tamil race/ethnicity; Real or imputed political opinion; and Illegal departure from Sri Lanka and failed asylum seekers.

33    It is under the subheading “Business problems” that, for the purposes of this appeal, the critical section of the Tribunal’s reasons appears. It reads in [51]-[54]:

The Tribunal accepts that if he returns to Sri Lanka the applicant will still owe money. The applicant has not claimed that he would be unable to pay back the money he owes in the future and the Tribunal finds on the evidence before it that it is reasonable to expect that the applicant, who has a successful ten years as a business operator behind him, could return to work and repay the money he owes. In any event, the Tribunal finds that it is a normal state of affairs for a business operator to owe and be owed money at any given point in time. The Tribunal accepts that if the applicant was unable to repay that money, he may be subjected to threats or demands for payment but having regard to its findings above, is not satisfied that his failure to pay the money will result in physical harm. The Tribunal does not accept that such threats or demands would amount to serious harm. The Tribunal does not accept that such threats or demands would amount to serious harm of a type envisaged in s 91R.

The Tribunal has found that the applicant has not previously been physically attacked, reported to the police, threatened by the police or threatened with being reported as an LTTE supporter. The Tribunal has found that the applicant’s creditors would not harm or kill him as it would not be in their interests to do so. The Tribunal does not accept that Suranka would pay someone to have him killed. The Tribunal finds also that it is reasonable to expect that if the applicant was genuinely fearful that this would occur he could minimise or eliminate the chance of this by not seeking to recover the money owed to him. The Tribunal is satisfied that contemplating that the applicant might elect not to recover money owed to him to avoid particular dangers he envisages from Suranka does not amount to an impermissible requirement that the applicant change something fundamental to his identity or beliefs to avoid persecution.

As put to the applicant at hearing, the Tribunal accepts that he experienced business troubles and that he had some conflict with local people and police. However, the Tribunal is not satisfied on the evidence before it that any harm he has faced in the past or would face on return would amount to serious harm as envisaged by s 91R or significant harm within the meaning of s 36(2A).

The Tribunal has found that the applicant was not beaten up by police or the navy. On the evidence before it, the Tribunal does not accept that his business problems have escalated as the applicant has claimed. For the reasons outlined above, the Tribunal does not accept on the evidence before it that there is a real chance the applicant would be subjected to serious harm as a result of his business problems from the local people in his village, local fishermen, the Sinhalese people in neighbouring villages, the local police, the navy, the CID, Suranka, Anthony from Negombo, politicians, underground people or as a result of black magic.

34    In addition, the Tribunal did not accept that the appellant faced a real chance of serious harm for reasons of his Tamil race or ethnicity, or as a member of a particular geographic subgroup of Tamils, whether because of his race or ethnicity alone or in association with his business problems, including his indebtedness to others, or including as a returning Tamil asylum seeker.

35    It also found that the appellant has no connection with the LTTE and had not been reported to the authorities as a LTTE sympathiser. It did not accept that there is a real chance he would be persecuted for reason of his real or imputed political opinion.

36    As to his status as a returning failed asylum seeker, the Tribunal accepted the appellant would be arrested on his return and be charged with offences under the Sri Lankan Immigrants and Emigrants Act with leaving Sri Lanka other than from a proclaimed port and leaving without a valid passport. Given its rejection of his claims in evidence, it did not consider he would be of particular interest to the authorities. He was likely to be fined. It concluded there was not a real chance he would face serious harm as a result of his illegal departure from Sri Lanka.

37    Consequently, the Tribunal was not satisfied the appellant had a well-founded fear of persecution if he returned to Sri Lanka in the reasonably foreseeable future.

38    Separately, the Tribunal then considered whether the appellant was owed complementary protection, as provided in s 36(2)(aa) of the Act. As he still owes money, he may be subjected to demands and threats. It found he would not be subjected to physical harm, and the demands or threats would not amount to significant harm as defined. There was no real risk that the appellant would be significantly harmed, even if arrested on his return to Sri Lanka, or that he would be imprisoned for any lengthy period. Consequently, s 36(2)(aa) was also not engaged.

39    Consequently, the appellant’s application for a protection visa was refused.

PROCEEDING IN FEDERAL CIRCUIT COURT

40    The appellant contended in the FCC that the Tribunal had committed jurisdictional error because, in the last sentence of [52] of the Tribunal’s reasons, the Tribunal erred in finding that electing not to recover Suranka’s debt was a reasonable step the appellant could take to avoid the feared harm and that this also amounted to an acquiescence to Convention related persecution.

41    It was concluded on his behalf that, although the Tribunal had already rejected the threat to kill claim by Suranka, the Suranka threat to report claim had not been the subject of a previous finding by the Tribunal and therefore this was the basis on which the Tribunal disposed of the Suranka threat to report claim.

42    The FCC at [21] of its reasons accepted that the last two sentences of [52] misstated the law. However, the FCC also found that the Tribunal had already rejected the Suranka threat to report claim prior to its consideration of “the particular dangers he envisages from Suranka” in the last sentence of [52] of its reasons. It said at [20] that this prior rejection of the Suranka threat to report claims could be implied from the first sentence of [52] of the Tribunal’s reasons. It went on at [20] as follows:

It seems to me that if the Tribunal had specifically named Suranka in the first sentence of [52] then this review would not be before this court. It is reasonable on a fair reading of the whole of the decision to imply that the reference [is] to Suranka there. Given the references to the Suranka threat to report (as distinct from the threats to kill) has been referred to in several places through the decision. (sic) It was not overlooked by the Tribunal.

43    Consequently, the FCC regarded the last two sentences of the Tribunal’s reasons at [52] as concerning only a remaining “possible subjective fear” such that the clear misstatement of the law in those sentences did not infect the decision, including, by implication, the Tribunal’s treatment of the Suranka threat to report claim.

THE APPEAL: CONSIDERATION

44    It is accepted by the Minister, for the purposes of the appeal, that if the last two sentences of [52] of the Tribunal’s reasons are the way in which the Tribunal dealt with the Suranka threat to report claim, then it fell into jurisdictional error, because it involved assessing that claim on the basis of what the appellant should reasonably do to avoid persecution if he were to return to Sri Lanka, rather than assessing that claim on the basis of what he would do if he returned to Sri Lanka: see Appellant S395/2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 216 CLR 473; Minister for Immigration, Multicultural and Indigenous Affairs v VWBA [2005] FCAFC 175 and Minister for Immigration and Border Protection v SZSCA (2013) 308 ALR 18 (noting that Special Leave to Appeal from the last mentioned decision was given by the High Court on 16 May 2014).

45    It is therefore also common ground that, if the Tribunal did not address the Suranka threat to report claim other than in the last two sentences of [52] of its reasons, then the appeal should succeed and consequential orders made.

46    The Minister’s position is that the last two sentences of [52] of the Tribunal’s reasons address the Suranka threat to kill claim, and then only as an aside and not in a material way, because the Tribunal elsewhere said it was not satisfied that the Suranka threat to report claim was made out.

47    I have referred in some detail above to the Tribunal’s reasons because they must be read as a whole, and the Tribunal’s introductory reasons, and its recital and assessment of the evidence are part of the context in which the critical paragraphs of the reasons are to be read.

48    It is clear that the Tribunal was aware of the Suranka threat to report claim. It is recorded in [3] where the Tribunal summarises the basis of the appellant’s claims. It is specifically referred to when the Tribunal assesses whether the appellant gave credible evidence about his business problems: see at [26], [27], [31] and [41], and the dealings with Suranka and their general consequences also are referred to expressly at [29], [32], [34] and [39]. It features more prominently in those parts of this section of the Tribunal’s reasons than the Suranka threat to kill claim.

49    When the Tribunal turns to consider whether the applicant might be persecuted if he returns to Sri Lanka, its first subheading is the appellant’s “Business problems” in [51]-[54].

50    Paragraph [51] concerns threats from the appellant’s creditors.

51    Then [52] concerns the reported history provided by the appellant: the first sentence refers to earlier findings, rejecting the appellant’s claims as a matter of fact, including that he had not been threatened with being reported as a LTTE supporter. It addresses in the second sentence whether the appellant’s creditors would actually harm or kill him. It addresses in the third sentence whether Suranka (his only identified debtor) would pay to have someone kill him. But for the final two sentences, in my view it is clear that the Tribunal in the first sentence of [52] has addressed and rejected the appellant’s claims, including relevantly the Suranka threat to report claim.

52    Apart from the specific references to that claim referred to above, the Tribunal’s reasons considering the credibility of the appellant’s evidence about his business problems are progressive, and cumulative. Hence [28] refers to his fears (which in the light of other references in context includes the fear of the consequences or being reported as a LTTE sympathiser). The threats are “complex, interlinked, and at times confused”. His responses at hearing were criticised. He introduced at the hearing new claims, and his explanation for not expressing them earlier was rejected. His claims in some respects became progressively more elaborate.

53    Then the Tribunal discusses some specific topics which add to its unease about his credibility: they included his dealings with Suranka; about who had threatened to report him as a LTTE sympathiser; about whether he conflated the source of those threats as between Suranka and his debtors. Consequently, much of his evidence was specifically rejected at [49], and the Tribunal at [48] said:

The Tribunal has significant reservations about the applicant’s claims with respect to the events he claims occurred as a result of his business problems. The Tribunal finds that his inability to articulate coherently how these claims related to each other or the sequence in which the claimed events took place, the progressive escalation of the claims regarding what had happened to him and to his family and his failure to give direct or apposite responses when questioned by the Tribunal about its concerns in relation to the logic or plausibility of certain events make the applicant a less than credible witness in respect of these claims.

54    Consequently, reading the next section of the Tribunal’s reasons in the light of its previous reports, it is clear that [52] is a reference to its findings, based on the appellant’s evidence, and in the light of the claims he had made, including the Suranka threat to report claim. In particular, in my view, [52] is clearly intended to reject those claims for the reasons it had given. That is further fortified by the separate comprehensive reference to its findings in relation to the claims the appellant had made based on the asserted actual conduct flowing from his own unpaid debts in [54]. It can be seen that [52] addresses the threats, and [54] addresses the claimed past conduct, and then in each case the assessment by the Tribunal whether there is a real chance of future harm to the appellant. In relation to [52], that assessment is made in [53] and in relation to [54] it is included in that paragraph. As the submissions accept, that line is not precisely drawn: for example, Suranka is mentioned again in [54].

55    It must be accepted that the Tribunal’s reasons are not as precisely and clearly expressed as might have been the case. There is repetition. In the succeeding sections of its reasons, the same or similar findings are referred to, viewed from a slightly different perspective to cover alternate ways in which the appellant might have sought to enliven his claimed status as a refugee. The sections on his Tamil race/ethnicity and on real or imputed political opinion therefore involve some overlap. For example, in [59] the Tribunal again does not accept there is a real chance of the appellant being persecuted by reason of an imputed political opinion. The explanation for that approach is given by the Tribunal: the way the appellant’s evidence was given meant that the claims he made became progressively more elaborate, and were complex and interlinked.

56    In my view, it is clear that the Tribunal understood the appellant’s claims and did not accept them. In particular, in relation to the present appeal, it did not accept that there was a real chance that the appellant would be exposed to significant risk by either the Suranka threat to report claim, or by the Suranka threat to kill claim.

57    I do not consider that the last two sentences of [52] of the Tribunal’s reasons affect that conclusion. I have carefully considered them, standing alone and in their context in [52] and in the whole of the reasons. I accept the Minister’s contention that, as they immediately follow reference to the Suranka threat to kill claim, they relate to it and not to the Suranka threat to report claim (although the use of the plural “dangers” in the last sentence might point otherwise). I also accept the Minister’s contention that, in any event, they represent a supplementary reason for rejecting the existence of a real risk of persecution, so that the Tribunal’s primary reasons for doing so would stand unaffected even if they related to the Suranka threat to report claim.

58    I have carefully considered the written and oral submissions of counsel for the appellant. The Suranka threat to report claim was, as he said, a core claim of the appellant. However, my view is that the Tribunal did not overlook that claim and that its reasons read as a whole make it clear that it was not satisfied that the Suranka threat to report claim was made, or that it exposed the appellant to the risk of significant harm by reason of a perceived political opinion which might then be attributed to him. Those reasons are independent of the additional comments in the final two sentences of [52], even if properly understood they relate to that claim. To the extent that the Tribunal has “bundled” the two threat claims (of Suranka and of the appellant’s creditors), the Tribunal has not done so in a way that was accidental or in error, or in a way that led to it dealing with the Suranka threat to report claim only in the final two sentences of [52]. It did so because the appellant’s evidence – for the reasons the Tribunal claimed – tended to interlink variously his concerns.

59    The appellant separately contended that the way the Tribunal addressed the appellant’s claim as a failed Tamil asylum seeker returning to Sri Lanka (the returnee claim) also involved jurisdictional error. However, that contention was built upon the way the Tribunal addressed the Suranka threat to report claim.

60    The Tribunal accepted that those returning to Sri Lanka, if Tamils suspected of having links to the LTTE (or for other serious reasons), are singled out for adverse treatment. The Tribunal did not accept the appellant, as a Tamil not suspected of such links, would be exposed to that risk. That is consistent with it not being satisfied that there was a real risk that the Suranka threat to report claim would lead to the appellant being identified as a suspected LTTE sympathiser or supporter.

61    In my view, having regard to how I consider the Tribunal addressed the Suranka threat to report claim, there was no jurisdictional error on the part of the Tribunal in relation to the returnee claim. Where the Tribunal separately considered the returnee claim, it specifically referred to its earlier finding at [64] that there is not a real chance that the appellant would be suspected of involvement with the LTTE.

ORDERS

62    For those reasons, the appeal is dismissed. The appellant should pay to the first respondent costs of the appeal.

Associate:

Dated:    24 October 2014