FEDERAL COURT OF AUSTRALIA

SZTIV v Minister for Immigration and Border Protection [2015] FCA 108

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court (Driver J): SZTIV v Minister for Immigration & Border Protection & Anor [2014] FCCA 1674, dismissing an application for review of a decision of the second respondent (“Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the appellant a Protection (Class XA) visa (“protection visa”).

Background

2    A summary of the background to these proceedings, the appellant’s claims for protection and a timeline of events that took place in the Tribunal are set out at [l]–[14] of the reasons for judgment of the primary judge (“R”).

Application for Review

3    The appellant’s application for review in the Federal Circuit Court raised five grounds. They can be summarised as follows:

(1)    The Tribunal failed to consider the appellant’s claim for protection that she feared persecution in Sri Lanka by reason of her religion.

(2)    The Tribunal failed to consider the appellant’s claims to fear persecution by reason of her membership of the particular social groups, elderly Tamil women whose children are in western countries, mothers of children who have, or are perceived as having, participated in anti-Rajapakse protests, and Tamil women who are perceived as having participated in anti-Rajapakse protests.

(3)    The Tribunal did not assess the appellant’s claim that, after the introduction of Legislative Instrument IMMI 13/048 (“Legislative Instrument”), her “personal details would have been passed to the Sri Lankan Police”.

(4)    The Tribunal did not assess the appellant’s claims for protection under the complementary protection ground of “significant harm”.

(5)    Fifthly, the Tribunal failed to inform the appellant that it would rely on certain country information pursuant to Ministerial Direction No 56 made under s 499 of the Migration Act 1958 (Cth) (“Act”).

4    The primary judge rejected all of the appellant’s grounds of review. His Honour’s reasons are canvassed below in the context of addressing the appellant’s grounds of appeal.

Appeal

5    The appellant’s notice of appeal contains five grounds, as follows:

1.    The Court below erred in finding that the Refugee Review Tribunal had not failed to property consider the Appellant’s claims under s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (“the Act”).

2.    The Court below erred in finding that it was open to the Tribunal to determine the nature of my claim under the religious ground, though the appellant in her submission and in her statement articulated her claim under the religious ground.

3.    The Tribunal failed to consider relevant considerations, failed to ask relevant questions and failed to engage in constructive inquisitorial inquiry.

4.    The Tribunal failed to assess the appellant’s claim according to law. The Tribunal failed to assess the appellant claim stemmed from the Ministerial Direction IMMI 13/048 entitled “Disclosure of information to prescribed Bodies” dated 11 June 2013.

5.    The Tribunal did not ask relevant questions as to the appellant’s claim of fear under the ground of religion despite mentioned in the form 866C, in the statement to the Department of Immigration and Border Protection and in the submission to the Refugee Review Tribunal.

6    Only the first two grounds take issue with the decision of the court below. Grounds three, four and five seek to challenge the decision of the Tribunal. However, I will treat all of the appellant’s grounds of appeal as alleging appealable error on the part of the primary judge in failing to find error in the Tribunal’s decision in respect of grounds three, four and five.

7    The appellant filed written submissions prior to the hearing, but those were principally directed to the appellant’s claim that the Tribunal had allegedly failed to consider her religious claim, as a woman of the Hindu religion, either under the Refugees Convention or under the complimentary protection ground of “significant harm” (s 36(2)(aa) of the Act).

Ground One

8    This ground is not addressed in the appellant’s written submissions. However, there seems to be some overlap between this ground and grounds two and four in the Court below. To the extent that the appellant is submitting that the primary judge erred in his consideration of those grounds, I cannot accept that submission.

9    For the reasons given by the primary judge at R [25]–[29], the Tribunal considered the appellant’s claims to fear persecution on the basis of her membership of particular social groups, but rejected them: see the Tribunal’s findings at [66] and [71]–[73] of its decision. The appellant has not identified any particular error by the primary judge in either her notice of appeal or written submissions. On that basis alone, this ground must be dismissed.

10    As to the appellant’s assertion that the primary judge erred in his treatment of ground four below, the primary judge dealt with this at R [52]–[54]. In circumstances where, as here, the Tribunal has not made a finding that the appellant will be harmed upon her return to Sri Lanka, the Tribunal does not make a jurisdictional error by referring to its earlier findings when addressing the appellant’s complementary protection claims. See, for example, SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at 34 [32] per Robertson, Griffiths and Perry JJ; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [53]–[56] per Robertson J. The primary judge was correct to make this observation at R [53].

Grounds Two, Three and Five

11    The nub of grounds two and five is that the primary judge erred in concluding that the Tribunal did not make a jurisdictional error with respect to the appellant’s claim to fear harm by reason of her religion. Ground three asserts that the Tribunal “failed to consider relevant considerations, failed to ask relevant questions and failed to engage in constructive inquisitorial inquiry”. Read in isolation, ground three is nothing more than a vague assertion of jurisdictional error on the part of the Tribunal and can be dismissed on that basis. However, it is in similar terms to ground one in the appellant’s application below, which asserted that the Tribunal failed to consider her claim for protection on religious grounds. Thus, grounds two, three and five may be addressed together.

12    The primary judge did not accept that the appellant advanced a claim for protection on this basis (at R [20]). His Honour observed that the appellant listed “Religion: Hindu woman” in her written submissions to the Tribunal as a ground upon which she feared serious harm, but that this was not sufficient to amount to “a substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. See also NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 19 [60] per Black CJ, French and Selway JJ; and, therefore, did not have to be considered. Nor did the appellant put forward any evidence from which it could be said that the claim clearly or squarely arose (at R [21]). Accordingly, there was no express or implied claim as alleged by the appellant, and his Honour was correct so to hold.

13    The appellant’s written submissions at paras (2), (14)–(15), (17)–(19), (21(a))–(21(c)) and (21(f)) do not take matters further. It can be accepted that the appellant listed the Refugees Convention ground of religion as a basis upon which she feared persecution in Sri Lanka in her statement that accompanied her visa application form and her written submissions to the Tribunal. Further, it can be accepted that the appellant listed her religion as “Hindu” in her visa application form. But merely to list a Refugees Convention ground, as the appellant did in this case, without tying it to evidence and submissions will not be enough to advance a claim for protection.

14    However, even assuming that the claim had been advanced, it was, as his Honour observed at R [22], considered “as part of more general considerations by the Tribunal”. In this connection, his Honour referred to [72]–[73] of the Tribunal’s decision where it found that the appellant’s claim to fear persecution in Sri Lanka was “not genuine” and that the chance of her being harmed due to “any other reason” was “so remote as to be insubstantial and far-fetched”. The Tribunal made those findings in a context where it expressly acknowledged, at [46] of its decision, the appellant’s statement in her submissions that she feared serious harm on the basis of her religion. It did so also in a context where the appellant said, in her statement accompanying her visa application, that, “as far as the submissions in respect of race, religion, nationality, membership of a particular social group or political opinion are concerned ... for the most part they are indistinguishable from each other”. The appellant appears to be departing from this position at paras (18) and (21(b)) of her written submissions. Nevertheless, since the facts and circumstances supporting the appellant’s asserted claim were the same as those supporting her other claims, the rejection of those claims foreclosed any chance of success with respect to the former.

15    In so far as the appellant is suggesting that the Tribunal failed to have regard to her asserted claim for the purposes of assessing whether she was owed complementary protection, this was dealt with by the primary judge at R [54].

16    At paras (21(b)) and (21(f)) of her written submissions, the appellant contends that the Tribunal failed to ask “relevant questions” with respect to this claim. There are two problems with this submission. First, the appellant has not identified what questions the Tribunal was required to ask, but did not do so. Secondly, and perhaps more importantly, the appellant did not adduce a transcript of the Tribunal hearing in the court below. Absent a transcript, neither the reviewing court nor this Court could draw inferences from the Tribunal’s decision in the appellant’s favour.

Ground Four

17    In this ground, the appellant asserts that the Tribunal did not assess her claim that, after the introduction of the Legislative Instrument, she faced a real chance of persecution in Sri Lanka, as her “personal details would have been passed to the Sri Lankan Police”. At para (21(d)) of her written submissions, the appellant submits that she sent a copy of the Legislative Instrument to the Tribunal but that it was overlooked.

18    The same case was put in the court below. In support of it, the appellant read affidavits affirmed by herself and her son-in-law. In addition, the appellant’s daughter gave oral evidence.

19    The Minister read an affidavit affirmed by Bernadette Ruddy, the Director of Technology Services at the Tribunal.

20    The primary judge summarised the evidence going to the question of whether the Legislative Instrument had been sent to the Tribunal at R [32]–[36], as follows:

(1)    The appellant’s daughter gave evidence that she asked her husband, on behalf of the appellant, to fax various documents to the Tribunal at various times, including the appellant’s post-hearing submission dated 9 July 2013 (at R [32]). She said that the fax on 9 July 2013 included the Legislative Instrument. When questioned by the primary judge, she conceded that she was not present when her husband faxed the documents to the Tribunal (at R [33]).

(2)    The appellant’s son-in-law adopted the truth of his statutory declaration, which was annexed to his affidavit (at R [34]). This evidence was “not persuasive evidence” that the appellant sent the Legislative Instrument to the Tribunal (at R [35]). Under cross-examination, he had no precise recollection of what occurred on 9 July 2013 (at R [35]). He had annexed to his affidavit transmission records from his employer, but they were “inconclusive” (at R [35]).

(3)    The fax transmission of the post-hearing submission “disclose[d] from the transmission lines at the top and bottom of the document ... that it was only the submission (without the copy of the [Legislative] [I]nstrument) that was sent to the Tribunal by facsimile” (at R [35]). His Honour considered that this conclusion was reinforced by the evidence of Bernadette Ruddy: that the Tribunal’s records of fax transmissions on 9 July 2013 disclose the transmission of a single page (the post­ hearing submission), albeit that it was sent twice (at R [36]). His Honour observed that Ms Ruddy’s evidence was “unshaken in cross-examination “ (at R [36]).

21    In the light of this evidence, his Honour found that the appellant’s post-hearing submission raised a sur place claim, but that the Legislative Instrument “was not put by the appellant to the Tribunal as part of that claim” (at R [37]). These findings were open to the primary judge on the basis of the evidence as described above. No appealable error arises from the making of those findings. Consequently, it is not correct to say, as the appellant does at para (21(d)) of her written submissions, that the Tribunal “overlooked” the Legislative Instrument.

22    In any event, as submitted by the Minister in the court below, the Legislative Instrument was irrelevant to the appellant’s sur place claim. His Honour acknowledged this at R [38]. Then, at R [39]–[51], his Honour adopted the Minister’s preferred construction of s 336F of the Act, which was set out in his written submissions in the court below. It is convenient to repeat those paragraphs.

23    The Legislative instrument was made on 11 June 2013 pursuant to reg 5.34D of the Migration Regulations 1994 (Cth) and commenced on 1 July 2013. It specifies, for the purposes of s 336F(1)(d) of the Act, certain bodies as prescribed bodies. One of those bodies is the “Sri Lanka Police Service” (“SL Police”).

24    Section 336F of the Act makes it an offence for a person to cause, by their conduct, disclosure of “identifying information” (as defined in s 336A), provided that the disclosure is not a “permitted disclosure” within the meaning of ss 336E(2) and (3). Relevantly, a permitted disclosure is a disclosure that is authorised under s 336F and is for the purpose, or one or more of the purposes, for which the disclosure is authorised: s 336E(2)(c).

25    Subsection 336F(1) permits the Secretary of the Minister’s department (“Secretary”) to authorise, in writing, a specified officer or any officer included in a specified class of officers, to disclose identifying information of the kind specified in the authorisation to, relevantly:

(a)    One or more specified bodies each of which is a police force or police service of a foreign country: s 336F(1)(b)(i); or

(b)    one or more prescribed bodies of a foreign country: s 336F(1)(d).

26    However, by reason of s 336F(3), a disclosure is taken not to be authorised under s 336F if, relevantly:

(a)    The person to whom the identifying information relates is an applicant for a protection visa: s 336F(3)(a)(i) ;and

(b)    the disclosure is to a foreign country in respect of which the application or claim is made, or a body of such a country: s 336F(3)(b).

27    Subsection 336F(3) had the effect of prohibiting disclosure of the appellant’s identifying information to the SL Police, including while her application to the Tribunal was on foot.

28    There are two relevant exceptions to the prohibition in s 336F(3). First, it will not apply where the person to whom the identifying information relates has requested or agreed to return to the foreign country in respect of which they made their application: s 336F(5)(a). Secondly, it will not apply where an applicant for a protection visa has had their application refused and finally determined: s 336F(5)(b). Importantly, nothing in s 336F(5) permits the Secretary to disclose a protection visa applicant’s identifying information while their application is not finally determined (within the meaning of the then s 5(9) of the Act).

29    The appellant’s claim as set out in her post-hearing submission was as follows:

Since I heard the news that the department of Immigration and Citizenship has decided to share information with the Sri Lankan police from 1 July 2013, I fear that my personal details also may have been given to the Sri Lankan authorities. The Sri Lankan authorities perceive people who apply for asylum in Australia as LTTE sympathisers. Therefore, I fear if I returned to Sri Lanka, I will be harmed because I fear that the Sri Lankan police by now may have got my information regarding my protection visa.

30    Thus, the appellant feared that, in the light of the making of the Legislative Instrument, the Minister’s department had the power, from that time, to give information regarding her protection visa application to the SL Police. The appellant’s claim for protection clearly was based on the SL Police possibly having that information already. That is the only way in which her claim could sensibly be understood. The basis of her fear of harm could not have been that her personal details could be given to the SL Police after her visa application was refused and finally determined, as in those circumstances she would not be a person to whom Australia owes protection obligations. Nor could the appellant have feared that the instrument permitted an authorised officer to give the information to the SL Police if the Tribunal set aside the primary decision under s 415(2) and substituted for it a decision to grant a protection visa to her, as that would be contrary to s 336F(3) (and, in any event, the appellant would not be forcibly returned to Sri Lanka).

31    The question for the primary judge, therefore, was whether the Legislative Instrument permitted a person authorised by the Secretary to provide identifying information concerning the appellant to the SL Police prior to the Tribunal making a decision on the review. In the court below, the Minister submitted that the instrument did not so permit and that it could even be said that it had no effect at all on the appellant’s circumstances, given the power in s 336F(1)(b)(i), which contemplated permitted disclosures to police services of foreign countries.

32    The primary judge accepted the Minister’s construction of s 336F at R [48]. His Honour was correct to do so. In the light of his Honour’s conclusion, it followed that the Tribunal did not misinterpret the appellant’s sur place claim at [71] of its decision.

33    His Honour agreed with the Minister that the Tribunal was correct when it found that there “is no reason to expect that the Sri Lankan authorities would become aware of (the appellant’s unsuccessful protection visa application in Australia, despite the appellant’s claim to the contrary in her post-hearing submission”. That was so at least for the reason that an authorised officer could not have disclosed identifying information about the appellant to the SL Police while the Tribunal was still considering her application (which the appellant feared had already occurred: see the final sentence of her submission extracted at [29] above). Further, the definition of “identifying information” in s 336A does not include information about a person’s visa application per se.

34    His Honour considered that the Tribunal was also correct in finding that there was “[n]o evidence ... that the Australia[n] government shares with the Sri Lankan government identifying information on persons applying [for] protection visas in Australia, which in any event is contrary to the provisions of the Migration Act’’.

35    His Honour also observed that the Tribunal found, at [71] of its reasons, that there was no reason to expect that the appellant would be of any interest to the Sri Lankan authorities on her return, and that there was no evidence to support her claimed fear of adverse attention for that reason.

36    There is no error in his Honour’s conclusions as to the construction of s 336F or the Tribunal’s consideration of the appellant’s post-hearing submission.

Conclusion

37     The judgment under appeal is not affected by any appealable error. Accordingly, the appeal must be dismissed, with costs.

Associate:    

Dated:     24 February 2015