FEDERAL COURT OF AUSTRALIA

SZSXY v Minister for Immigration and Border Protection [2014] FCA 1183

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, as agreed or taxed.

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

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from the Federal Circuit Court of Australia, by notice of appeal filed on 17 July 2014.

2    A short procedural chronology is as follows.

3    The appellant, a citizen of Sri Lanka, left Sri Lanka by boat on 10 May 2012, arriving in Australia on 29 May 2012. He applied for a Protection (Class XA) visa on 27 August 2012. On 25 October 2012 the delegate of the Minister refused the appellant’s application for a visa. By application filed on 31 October 2012 the appellant sought review by the Refugee Review Tribunal (the Tribunal). The appellant appeared before the Tribunal on 16 January 2013. On 8 May 2013 the Tribunal affirmed the decision not to grant the appellant a Protection (Class XA) visa.

The Tribunal’s decision

4    In its findings and reasons, the Tribunal considered the claims under the following headings: Political opinion – Mullaitivu incident; Political opinion in favour of the LTTE; Political opinion – UNP; Tamil ethnicity; Particular social group – failed asylum seekers; and Particular social group – Illegal departure. I will set out the relevant detail when considering the reasons of the primary judge.

5    I note, however, that in relation to the information on treatment of returnees to Sri Lanka, the Tribunal found, at [50], “that under standardised procedures which apply to all cases, regardless of their ethnicity or the circumstances in which they left the country, returnees are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service (SIS) and the airport Criminal Investigation Department (CID).” The Tribunal also found, at [51], that those returnees who were believed to have left the country in breach of the law on immigration and emigration were arrested at the airport and brought before a court to apply for bail. Bail was routinely given but if the arrival occurred over a weekend or on a public holiday the returnee was placed in the remand section of Negombo prison, possibly for some days, until a bail hearing was available. At [52], the Tribunal accepted that the consequences of having left Sri Lanka in breach of the law could well prove unpleasant for the appellant if he were to be returned, but the Tribunal was not satisfied that the treatment the appellant would receive when being questioned at the airport or while on remand awaiting a bail hearing or when he was later dealt with by the courts could reasonably be seen as reaching the level of serious harm amounting to persecution. The Tribunal said “I am not satisfied that he would suffer persecutory harm for such a reason if he were to return to Sri Lanka.” I take the reference to “for such a reason” as referring to the appellant’s membership of the particular social group consisting of those who have left Sri Lanka in breach of the country’s immigration law: see the reasons at [48].

The Federal Circuit Court

6    By an amended application filed in the Federal Circuit Court on 23 September 2013 the appellant applied for judicial review of the Tribunal’s decision. That Court’s jurisdiction does not extend to a review of the merits of the decision of the Tribunal. The grounds were:

1.    The RRT has not considered one of my integer or aspect of my Convention Claims for a Protection Visa and Complementary Protection.

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

7    The date of the hearing in the Federal Circuit Court was 18 December 2013 and the date of the last submission to it was 20 May 2014. The orders of the Federal Circuit Court dismissing the application for review, with costs, were made on 10 July 2014.

8    The primary judge held that the appellant’s contention that the Tribunal failed to consider an integer of his Convention claims for protection and/or complementary protection was an attack upon the merits of the Tribunal’s decision. The primary judge also appears to have held that the appellant’s contentions “that the Tribunal did not consider his claim in relation to the risk of him being detained upon arrival at Colombo airport in degrading conditions for a period of up to months in Negombo prison” also went only to the merits of the Tribunal’s decision.

9    The primary judge held that, contrary to ground 1 of the amended application, the Tribunal did consider the appellant’s claims to fear lengthy detention in Negombo prison in degrading conditions at [49]–[52] and [56]. The primary judge held that the Tribunal there accepted that the appellant could be held on remand for a relatively brief period awaiting a bail hearing in overcrowded and possibly insanitary conditions but that could not reasonably be seen as reaching the level of serious harm amounting to persecution. At [56], the Tribunal said it was not satisfied that those conditions, considered individually or cumulatively, would involve treatment that could reasonably be said to amount either to serious harm in a Convention sense or to significant harm under the provisions of Australia’s complementary protection arrangements.

10    The primary judge held that, as a matter of general principle, whether a relatively brief period on remand in prison in Sri Lanka constituted “serious harm” or fell within the forms of harm in the definition of “significant harm” was a judgment of fact and degree for the Tribunal.

11    The appeal to this Court, as I have said, was filed on 17 July 2014. The grounds of appeal are as follows:

1.    The Federal Magistrate Court has not made a finding that the RRT committed jurisdictional error

2.    The Federal Magistrate Court has not made a finding that the RRT has gone its jurisdiction.

3.    The Federal Magistrate Court has not made a finding that the RRT has not provided natural justice to me as required by the procedural fairness under the Migration Act.

The written submissions on behalf of the Minister, filed on 29 October 2014, contended that grounds 1 and 2 in the notice of appeal did not identify any basis for assertion that the Federal Circuit Court erred in failing to find that the Tribunal committed jurisdictional error. As to ground 3, the Minister noted that it appeared to raise an issue not raised in the Court below, the appellant would therefore need leave to raise that new ground, and the proposed ground had no, or no real, prospects of success. I will treat ground 1 as picking up the grounds of the application to the Federal Circuit Court. Ground 2 adds nothing to ground 1. Ground 3 is not particularised or advanced in the written or oral submissions of the appellant. If it had been developed, I would accept the submission on behalf of the Minister that it would have been necessary to obtain leave to advance ground 3 as a new point.

12    The written submission on behalf of the appellant states first that:

“The RRT has not considered one of my integer of aspect of my Convention Claims for a protection visa and/or Complementary protection. The RRT accepted Tamil liked me was at risk of persecution due to my ethnicity in the past but not now. There is evidence before the RRT to accept that Tamils like me are at risk and discrimination in Sri Lanka. (please refer to paragraph from 34 to 44)”

13    The written submission continues:

“The RRT has not considered my claim in regard to my detention on my arrival in degrading conditions for time periods of up to months in Negambo. Please refer to paragraph 56 that indicates that the finding of the RRT failed to state why and how I am not eligible for complementary protection. Finally the RRT has failed to deal with my claim that I could be held for some months in Negambo prison (waiting for a bail). This claim was not assessed and considered in the paragraph 56.”

14    The written submission next states:

“The RRT failed to consider what will happen to me, if I were to return to Sri Lanka, due to my brother’s incidents by Army. My brother is now in France. I fear to return in absence of my brother.”

15    Lastly, the written submissions states:

The RRT failed to consider my claims to fear harm from the Sri Lankan security forces under the complementary protection criteria.

16    The Minister drew attention to the decision of this Court in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 but submitted it was distinguishable from the present case because in this case the Tribunal’s findings on the issue whether the appellant had a well-founded fear of persecution by reason of his illegal departure from Sri Lanka were supported by an independent finding to the effect that the process by which the appellant may be remanded while awaiting a bail hearing in respect of any charges for his illegal departure was not a process that involved differential treatment for a Convention Reason and thus the Tribunal found to the effect that any adverse treatment the appellant faced was by reason of a law of general application, and therefore not for a Convention reason, and did not involve “systematic and discriminatory conduct” within s 91R of the Migration Act 1958 (Cth) (the Act).

Consideration

17    There is force in the submission on behalf of the Minister that the grounds of appeal do not address the findings of the Federal Circuit Court. It is also the case that the appellant’s oral submissions sought to put in issue the merits of the Tribunal’s findings, which neither the Federal Circuit Court nor this Court has jurisdiction to review.

18    Treating what I have set out at [12] as a ground of appeal, the Tribunal at [36] dealt with the question of whether Tamils like the appellant were now at risk in Sri Lanka. The Tribunal found that the security situation had stabilised and the risks posed to Tamils arising simply from their ethnicity were substantially reduced. The Tribunal then noted that a merits-based assessment based on individual circumstances was still necessary; that Tamil ethnicity and place of origin could still be factors increasing the vulnerability of persons within eight “risk profiles” which it set out and whose protection claims warranted particularly close attention; and that the “risk profiles” identified should not be seen as exhaustive. The Tribunal then, at [37], said that it was not satisfied that a political opinion in favour of the LTTE had ever been imputed to the appellant or that he had ever been suspected of LTTE membership or involvement. Thus the Tribunal was not satisfied that the appellant would fall into the risk profile of “persons suspected of certain links with the LTTE”. The Tribunal then went on, at [38], to consider the more specific claim that the appellant would face harm in Sri Lanka because he is a young Tamil male from Udappu. At [44], the Tribunal summarised the considerations it had taken into account and said it was not satisfied the information before it demonstrated that those Sri Lankans who are ethnically Tamil, whether or not they are young Tamil Males from Udappu, faced serious harm simply because of their ethnicity or geographic origin. Neither was the Tribunal satisfied that the appellant himself faced a real chance of serious harm for such a reason.

19    In my view, the Tribunal did consider the integer referred to. I reject this ground.

20    Treating what I have set out at [13] as a ground of appeal, the Tribunal accepted at [56] that the appellant would:

likely face questioning at the airport on return as a failed asylum seeker. I also accept that, at the airport, he would be questioned and probably arrested on charges of leaving the country illegally, that he could well be placed in remand in overcrowded and possibly unsanitary conditions for a relatively brief period while awaiting a bail hearing, and that he would later be fined if found guilty.

In my view, from this it is clear that the Tribunal did deal with the appellant’s claim that he could be held for a period in Negombo prison waiting for bail and found that to be a “relatively brief period”. Having assessed those facts the Tribunal concluded that the harm could not be said to amount to significant harm in terms of s 36(2)(aa) of the Act.

21    I reject this ground. In my opinion, the Tribunal has considered the appellant’s claim in regard to detention and assessed it against the complementary protection provisions.

22    I also consider that the Tribunal found that any detention of the appellant on his return would not be for a Convention reason but as a result of the general application of a law of general application: see [50]–[52], the essential parts of which I have set out at [5] above. Thus in my view the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 is distinguishable. I accept the submissions on behalf of the Minister that the Tribunal made a finding that any harm was not Convention related harm and was not systematic and discriminatory conduct within the meaning of s 91R of the Act.

23    Treating what I have set out at [14] above as a ground of appeal, at [17] the Tribunal stated that the appellant claimed to fear harm in Sri Lanka arising from an incident in which his brother allegedly fought with army personnel but stated that it had a number of concerns as to the credibility of that claim. The Tribunal articulated its concerns at [18] and following and stated at [22] that the claims were so implausible that the Tribunal did not accept them. At [29], the Tribunal said that it was not satisfied that the appellant was ever targeted by the army in Sri Lanka and further was unable to be satisfied as to the credibility of the associated claim that the army wished to harm him because his brother fought with army personnel in an incident in Mullaitivu. It followed that the Tribunal did not accept that the appellant would be arrested, detained or otherwise harmed by the army or other authorities for such a reason if he were to return to his family home in Udappu.

24    It follows, in my opinion, that the Tribunal did consider but rejected this claim based on the appellant’s brother’s incidents in relation to the army. I reject this ground.

25    Treating what I have set out at [15] above as a ground of appeal, the Tribunal turned to this issue at [55] of its reasons and considered the claim by reference to the “inability of the authorities to protect their citizens” and by reference to the claimed real risk of significant harm at the airport or while in prison as a failed asylum seeker who left Sri Lanka illegally. The Tribunal, at [56], then refers back to its earlier rejection of the credibility of the appellant’s claims that he would suffer harm in Sri Lanka for any of the reasons he had advanced. This is done under the heading “complementary protection” where it is clear that the Tribunal was considering s 36(2)(aa). I take this to include the Tribunal’s earlier findings rejecting the appellant’s claims that the army or other authorities in Sri Lanka would harm him or would target him: see in particular [28] and [29] of the Tribunal’s reasons. I note also the consideration at [30] of the claim concerning Sri Lanka CID officers.

26    It follows that the Tribunal did not fail to consider the appellant’s claims to fear harm from the Sri Lankan security forces under the complementary protection criteria. I reject this ground.

Conclusion

27    For these reasons, the order of the Court is that the appeal is dismissed with costs.

Associate:

Dated:    6 November 2014