FEDERAL COURT OF AUSTRALIA

SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal from a decision of the Federal Circuit Court refusing the appellant Constitutional writ relief on the one basis that he advanced, namely, that the Refugee Review Tribunal misconstrued the provisions of s 36(2B)(c) of the Migration Act 1958 (Cth): SZSPT v Minister for Immigration and Border Protection [2014] FCCA 1388.

Background

2    The basis of the argument below and one of the two grounds pressed in this appeal was that the Tribunal had committed a jurisdictional error in rejecting the appellant’s claim that there was a real risk that he would suffer significant harm, within the meaning of s 36(2)(aa), if he were removed from Australia to Sri Lanka, because he was a member of the particular social group of failed Tamil asylum-seekers who had left Sri Lanka illegally.

3    The appellant contended that the Tribunal had erred in holding that that risk was one faced by the Sri Lankan population generally and was not by him personally within the meaning of s 36(2B)(c). The significant harm alleged was that he would be subjected to torture or cruel or inhuman treatment or punishment within the meaning of s 36(2A)(c) and (d). The appellant relied on the Tribunal’s findings that he was exposed to a real risk of significant harm because he faced a penalty for contravening Sri Lanka’s criminal law against leaving the country illegally in circumstances where the Sri Lankan Government’s record on human rights was extremely poor and prison conditions were harsh.

4    The Tribunal found that every person in Sri Lanka who broke a law of general application was subject to the penalties of that law, including imprisonment, and that, as such, imprisonment was a real risk faced by the entire population. Therefore, it found that the risk of imprisonment that the appellant faced, were he to be returned to Sri Lanka, per se, fell outside Australia’s complementary protection obligations.

5    The trial judge found that the appellant did not face a real risk that he would suffer significant harm, simply because he had broken the law, by reason that the exclusion in s 36(2B)(c) applied and, accordingly, dismissed the application below.

6    Subsequently, North J decided WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. There, his Honour held that, for the purposes of the consideration of a similar issue under ss 36(2)(a) and 91R(2)(a), Australia might owe protection obligations under the Refugee Convention where there was a threat to the visa applicant’s right to liberty within the meaning of s 91R(2)(a): WZAPN [2014] FCA 947 at [30]. His Honour said that the Tribunal needed to ask whether any detention was lawful, in the sense of being pursuant to a domestic law, when assessing a law of general application, but also that it had to have regard to the object of that law and to consider whether the detention was proportionate to that object. He referred to Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 303 [29]. There Gleeson CJ, Gaudron, Gummow and Hayne JJ said that whether the different treatment of different individuals or groups was appropriate and adapted to achieving some legitimate governmental object depended on what the different treatment involved, and ultimately whether it offended the standards of civil societies that sought to meet the calls of common humanity (WZAPN [2014] FCA 947 at [48]-[53]).

The legislative scheme

7    The Act provided, relevantly, as follows:

5(1)    cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the [the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.]

36    Protection visas

(1)    There is a class of visas to be known as protection visas.

Note:    See also Subdivision AL.

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

…

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

(2A)    A non-citizen will suffer significant harm if:

…

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; …

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

…

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

The appellant’s amendment application

8    The appellant sought leave to add a ground of appeal based on North J’s decision in WZAPN [2014] FCA 947, asserting that the Tribunal committed a jurisdictional error by failing to consider whether he had a well-founded fear of persecution within the meaning of s 91R(2)(a) as a result of the risk that he would be imprisoned for breaching a law of Sri Lanka, and whether the risk of such harm would be for a Convention reason.

The appellant’s primary argument under s 36(2B)(c)

9    The appellant sought to articulate, in a number of ways, that in order to be applicable, the exception in s 36(2B)(c) had to arise in a way that was different from the facts of this case, where it is was common ground that the appellant was a Tamil whose claim for asylum had failed, that he left Sri Lanka illegally and that he became subject to the ordinary processes of Sri Lankan criminal law. He asserted that the risk that he would be punished by imprisonment in circumstances that the Tribunal described as harsh, and where the Sri Lankan Government’s human rights record was extremely poor, meant that he was differentially at risk of significant harm that was not faced by the population generally, who were not in the same position; i.e. the population generally had not breached the law of general application by leaving Sri Lanka illegally. He argued that the exception in s 36(2B)(c) covered such things as disasters, involving a general breakdown of lawful authority, war, natural disasters and the like, and that it did not cover “plainly…situations where individuals may in the future act in a way that exposes them to risk”. He argued that the error that the trial judge made was to say that the risk applied to any person who broke the law and that his Honour failed to appreciate that, in order to bring oneself within that criterion, one had to act in a particular way. He argued that his Honour had added a gloss to the plain words of the legislation in error.

Consideration – s 36(2B)(c)

10    I am unable to understand that argument. The scheme of the complementary protection ground in s 36(2)(aa) is that it required the Minister to have substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to, relevantly, Sri Lanka, there was a real risk that he would suffer significant harm. However, if the Minister were also satisfied within the meaning of s 36(2B)(c), that that risk was one faced by the population of the country generally and not faced by the appellant personally, then the risk was deemed not to amount to a real risk of “significant harm” for the purposes of s 36(2)(aa).

11    In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.

12    Here, the risk faced by the population of Sri Lanka generally was that if its citizens broke the law, they became liable to such penalties as the law applied to the relevant contravention. Every citizen who broke such a law necessarily faced a risk personally that the consequences of such an infraction would be applied to him or her by law. But that was not any different to a risk faced by the population of the country generally. Ordinarily, citizens or persons present in any nation state are bound by the system of law applied by that state, and become subject to the penalties entailed by that law when they break it.

13    It would be unrealistic to construe the exception in s 36(2B)(c) as incapable of application to every person who was a lawbreaker in the country to which he or she was to be returned, where the consequence of the person having previously broken the law was that he or she might be exposed to the risk of being imprisoned in a prison system that did not meet international standards, but to which every other citizen of that country was equally liable to be subjected to if he or she broke not only that law, but any other law of that country. In particular, the exception provided by s 36(2B)(c) was directed to a real risk, for example, that a person would be subjected to torture were he or she returned to a country, to which not everyone in the population was exposed. However, if the population were generally exposed to the risk of torture, as opposed to the person as an individual or by reason of some characteristic that distinguished him or her from the characteristics of the general populace, then the exception was intended to operate, odd as that may seem. The exception deemed what would otherwise be within the meaning of the definition of significant harm in s 36(2A) not to be so where the law, for example, was one of general application to the population and was not applied in a discriminatory manner to particular persons by reason of some criterion that took them outside the ordinary course of the application of the law.

14    Where the discriminatory reason for such treatment amounts to a reason that attracts protection obligations within the meaning of the Refugee Convention, the person will be entitled to a protection visa under s 36(2)(a). However, where the discriminatory reason, or the differential treatment, arises for some other reason not falling within the application of the Refugee Convention, the complementary protection criterion under s 36(2)(aa) will apply, provided that, relevantly here, the person is not complaining of a real risk that applies generally to the population of the country to which he or she would be returned.

15    For these reasons, I see no error in the way that the Tribunal approached the appellant’s claim for complementary protection. The Tribunal found that nothing that it had seen in the country information, including that provided by the appellant’s representative, would lead it to conclude that he would be treated differently by reason of his race, any imputed association with the LTTE or his departing Sri Lanka illegally.

16    If the appellant’s argument were correct, any persons who had not breached the same law that he had breached would not generally face the same penalty as he would because of his breach and, therefore, he contended, that law would apply to him personally so that he should not be returned to Sri Lanka, notwithstanding that he had committed a crime which that country’s law forbade the population generally to commit.

17    Were the appellant’s argument to succeed, it would involve a proposition that he would also have been entitled to a complementary protection visa if he had breached the criminal law for any other reason, for example, that he had had murdered someone, because he would go to jail in the same harsh prison conditions of which he now complains. Most of the population of each country might not be thought to be murderers, but all are subject to the same laws prohibiting that crime and imposing punishments for its commission.

18    In my opinion, the appellant’s argument is incapable of rational application to the exception in s 36(2B)(c) and I reject it.

Consideration – the amendment

19    Apart from raising North J’s decision in WZAPN [2014] FCA 947, the appellant gave no reason why the ordinary rule of litigation on appeal should be departed from. The Minister did not oppose or consent to the addition of the new ground, but in Coulton v Holcombe (1986) 162 CLR 1 at 7-8, Gibbs CJ, Wilson, Brennan and Dawson JJ approved the ordinary rule found in University of Wollongong v Metwally [No. 2] (1985) 59 ALJR 481 at 483:

a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

20    Although North J’s decision may be considered to have raised a new point, this had always been available to be argued on the ordinary interpretation of the Act. It was always available to anyone who wished to advance what he or she contended was an ordinary interpretation of the legislation. His Honour’s decision is the subject of the Minister’s application for special leave to appeal to the High Court.

21    The question of whether discriminatory treatment of persons who are of a particular race, religion, nationality or particular persuasion, or who are members of a particular social group, constitutes persecution for that reason, ultimately depends upon whether the treatment is appropriate or adapted to achieving some legitimate object of the country concerned. As Gleeson CJ, Gummow and Kirby JJ said in Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 at 402-403 [43]-[44], applying what McHugh J had said in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258:

the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned]” …

In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory. (footnotes omitted) (emphasis added)

22    Here, the Tribunal accepted country information that returnees from Australia to Sri Lanka who had left illegally had not been charged under existing laws and that no issues had been reported of mistreatment of persons who had been returned previously where they had expressed support for the Liberation Tigers of Tamil Eelam, or had been detained by Sri Lankan authorities for imputed support for that organisation. The Tribunal found in [157] of its decision that, although the appellant had submitted through his migration agent representative at the hearing that an asylum-seeker who had returned to Sri Lanka from Australia had been mistreated, those claims, when investigated by the Australian authorities, had not been substantiated. It also found that other claims made by Human Rights Watch, as to alleged mistreatment of Tamil asylum-seekers returned to Sri Lanka, were not substantiated by the United Kingdom Government, which had investigated them. The Tribunal gave weight to the Department of Foreign Affairs and Trade’s advice of 16 October 2012 that Tamils returning to Sri Lanka were subject to the same entry procedures as any other citizens of Sri Lanka, and that the Australian High Commission had not observed any difference in the way those returnees were treated in comparison to Sinhala or Muslim returnees.

23    The Tribunal found that any punishment that the appellant would face under the Immigration and Emigration Act 1948 of Sri Lanka would be under a law of general application and did not amount to persecution for a Convention reason. It found that there was no real chance that the appellant would be persecuted now or in the reasonably foreseeable future for reason of his membership of a particular social group of failed Tamil asylum-seekers who had left the country illegally or any similar formulation, so that his claimed fear of persecution was not well-founded.

24    Although the Tribunal did not, in terms, engage in an evaluation of whether the Sri Lankan law complained of was appropriate and adapted to a legitimate end, it did find that there was no mistreatment of returned Tamil asylum-seekers who had left Sri Lanka illegally. In those circumstances, it is difficult to see how the new ground would have any prospect of success. I reject it.

Conclusion

25    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    19 November 2014