FEDERAL COURT OF AUSTRALIA

SZSZP v Minister for Immigration and Border Protection [2015] FCA 110

THE COURT ORDERS THAT:

1.    The appeal be allowed with costs.

2.    The orders of the Federal Circuit Court be set aside and in lieu thereof order:

1.    Order absolute in the first instance for a writ of certiorari to quash the decision of the Refugee Review Tribunal of 29 May 2013;

2.    Order absolute in the first instance for a writ of mandamus directed to the Refugee Review Tribunal to determine the applicant’s review application according to law; and

3.    The second respondent to pay the applicant’s costs.

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

REASONS FOR JUDGMENT

1    This is a refugee matter. The appellant is a citizen of Sri Lanka. He arrived by boat at Christmas Island on or about 30 April 2012 and applied for a protection visa on or about 13 August 2012. The basis for his application was that he claimed that he would be persecuted if returned to Sri Lanka on account of his ethnicity and imputed political opinions. The appellant was of Tamil ethnicity and Hindu religion and was from the area of Sri Lanka formerly controlled by the Liberation Tigers of Tamil Ealem (‘the LTTE’). A delegate of the Minister refused the appellant the grant of the visa and this conclusion was affirmed by the Refugee Review Tribunal (‘the Tribunal’) on review. The appellant then commenced judicial review proceedings against the Tribunal in the Federal Circuit Court which dismissed his suit: SZSZP v Minister for Immigration and Border Protection [2014] FCCA 1140. It is from this dismissal that the appellant now appeals.

2    Three issues arise:

1.    Did the Tribunal fail to deal adequately with the issue of complimentary protection (Ground 1);

2.    Did the Tribunal fail to deal adequately with the appellant’s claim to be a member of the particular social group constituted by young Tamil men from East or North Sri Lanka who had departed Sri Lanka illegally (Ground 2); and

3.    Should the appellant be permitted to raise a fresh ground of appeal to the effect that the Tribunal erred in concluding that a short time in detention could not constitute significant harm or serious harm for the purposes of the complimentary protection provisions (‘Proposed Ground 1A’).

3    One part of the appellant’s case before the Tribunal concerned his contention that he would be abducted by the government forces and various paramilitary groups if returned to Sri Lanka. The Tribunal accepted that people had been killed in Sri Lanka as a result of abductions but it thought this information of little assistance to the appellant.

4    It was more impressed by the fact that the appellant himself had never been approached, questioned or targeted by Sri Lankan authorities or any paramilitary group between October 2007 and the time of his departure from Sri Lanka in April 2012. The Tribunal was also of the view that the fact that the brother had similarly not been approached was material. Thus it was said by the Tribunal that the appellant had failed to identify any reason why he would be targeted.

5    The Tribunal made no reference in its assessment of the risk that the appellant would be abducted to his claim that his cousin had, in fact, been abducted. Yet there is no doubt the Tribunal was cognizant, at least to an extent, of this claim. For example, in an introductory section at [5] in its reasons, the Tribunal set out the appellant’s claim about his cousin’s abduction without reaching any conclusions on its correctness. At [15] this was reported with the additional information that he had been abducted by the Sri Lankan Army.

6    However, after that the Tribunal’s treatment of the cousin’s abduction is uneven and inconsistent. In the section of the reasons ([13]) dealing with why the Tribunal thought the appellant was in some ways unbelievable it said:

‘…He identified no further adverse treatment experienced by any of his family in Sri Lanka, with whom he maintains regular contact. In its totality, his evidence that he was living in hiding in Sri Lanka since around January 2012 due to his claimed fear of abduction impresses the Tribunal as unconvincing.’

7    This was not correct because he had identified his cousin as having been abducted. The Tribunal overlooked the same matter again at [18] where it said this:

‘…However, as put to the applicant, his evidence reveals that he has lived most of his life in or around his family home in Trincomalee without being targeted for abduction or serious harm by the Sri Lankan authorities or paramilitaries since October 2007 in connection with any imputed or actual political opinion. Also his evidence reveals that many of his family members also continue to live there without harm.’

8    This is not strictly incorrect but certainly needs to be heavily qualified by some additional words at the end of the last sentence ‘except the cousin who the applicant contends was abducted.’

9    The Tribunal then adopted a third approach at [24] where it said this:

‘…The applicant’s evidence in its totality and cumulatively, did not reveal him or any of his family members remaining in Sri Lanka to have experienced any serious or significant harm since the end of the war in May 2009 in connection with their Tamil ethnicity or for being Tamils from Trincomalee, nor did it indicate that they have ever been accused of being LTTE supporters.’

10    The cousin was abducted, according to the appellant, during the war so this statement is strictly correct. None of his family members, or the appellant's family, have been harmed since the war but his cousin was abducted during it. This tends to suggest that at least in this part of the Tribunal's reasons it was cognisant of the abduction of the cousin but was downplaying it on the basis that it had occurred during the war. Although the Tribunal does not say that in so many words, it is a fair interpretation of the process of reasoning.

11    This approach reveals an analysis of accepting that the abduction of the cousin had occurred but discounting its significance because it had occurred during the war. This is in contrast with the process of reasoning above at [6] where the abduction appears to have been overlooked or at [7] when its forensic significance was elided.

12    The Tribunal then continued at [30]:

‘30.    Regarding the suggested heightened risks of being imputed with pro-LTTE political opinions and seriously or significantly harmed in connection with those opinions because he has 2 brothers in the UK and a cousin who disappeared during the war, the applicant’s evidence did not reveal he or his family members remaining in Sril Lanka have so much as been questioned in connection with either of those factors. …

…

    …The Tribunal considers the suggestion that any political opinion(s) will be imputed to the applicant in the reasonably foreseeable future in connection with his cousin’s disappearance and/or his siblings residence in the UK to be highly speculative, even in the context of what is cumulatively accepted of the applicant’s circumstances in Sri Lanka now and in the reasonably foreseeable future.

    (emphasis added)

13    This is difficult to reconcile with [18] although consistent with [24] above.

14    To this point in its reasons, the Tribunal appears to have adopted inconsistent positions on the issue of the cousin’s abduction – at some points accepting it and at others downplaying its relevance. It is very unclear to me just what the Tribunal was trying to say in [1]-[44] on this issue. At [45]-[46] it explicitly dealt with the appellant’s fear of abduction. A basic plank in that case, plainly, was the cousin’s abduction. The Tribunal’s treatment was in these terms:

‘Other claims – fear of abduction

45.    The applicant claims that: he left Sri Lanka in April 2012 in part because he fears abduction, and referred to a number of abductions he heard of to support that claim. He susspected [sic] that the abductors were government forces and paramilitaries comprising the EPDP and Karuna Group, who work together with the Sri Lankan government and provided press clippings regarding abductions/deaths taking place in 2006 in Trincomalee. While the Tribunal accepts that those death [sic] occurred, the Tribunal considers that information to be of little assistance in assessing the risks of any harm faced by the applicant in the reasonably foreseeable future.

46.    Relevantly, as discussed in paragraphs 13 and 18 above, the applicant’s evidence did not reveal him to have ever been directly approached, questioned or targeted by any element of the Sri Lankan authorities since October 2007, or to have ever been approached by any paramilitary group. His evidence revealed no attempts to abduct or harm his brother (except for one isolated physical altercation considered previously) who continues to live in Trincomalee and indicated that his family members in Sri Lanka continue to live and work in Trincomalee without harm. He identified no reason why he would be targeted for harm or abduction as a young Tamil male living in an area which is predominantly Tami and in which many young Tamil men live without harm. Based on all the evidence before it, including the independent sources presented by the applicant’s representative, taken together what is accepted of the applicant’s and his family’s circumstances in Sri Lanka, the Tribunal is not satisfied that the applicant faces a real chance of abduction by any person or group in Sri Lanka in the reasonably foreseeable future.’

15    Given that the Tribunal had decided not to believe the appellant at [13] on grounds which included that none of his family had experienced any incidents of persecution, its failure to refer in any way to the abduction of his cousin in the section explicitly dealing with abduction rather suggests that the Tribunal had become confused by the time it had arrived at these paragraphs. I am not satisfied from the earlier paragraphs that this is a case where the matter was plainly in the Tribunal’s mind. Indeed, it is very unclear to me what the Tribunal thought of this claim at all. The reasoning deployed by the Tribunal at [24] and [30] is capable of being construed as meaning that the cousin had been abducted during the war and since the war had ended this was no longer true. It does not say that but it could be read that way. On the other hand, [13] and to an extent [18] proceed on a different basis in which the abduction is ignored. Troubling to my mind is that [13] is the critical paragraph where the Tribunal draws general conclusions about the appellant’s credit.

16    In this Court the appellant’s argument was that the Tribunal had failed to consider the abduction of his cousin as part of its treatment of his complimentary protection claim. That treatment appeared at [48]-[51]. I do not need to set it out in any detail. Two things about it are clear in my view:

1.    there is no express reference in it to the abduction of the cousin; but

2.    it is clear that the claim was rejected because the Tribunal reasoned from its conclusions on his protection claim that there was no risk of harm to him if returned.

17    Ordinarily, if the Tribunal rejects a claim for protection on the basis that there is no real risk of harm then there is likely to be a significant overlap with the issues thrown up about complimentary protection (although this is not inevitably so).

18    The Federal Circuit Court considered this aspect of the matter at [82]-[94]. It reasoned consistently with the preceding paragraph, that is to say, that the Tribunal determined the appellant’s complimentary protection claim, in effect, on the same basis as his claim under the Refugee Convention, i.e., that there was no risk of harm if he were returned. Critically at [84] the Court reasoned that ‘the RRT did not accept the disappearance of the applicant’s cousin was a basis for the applicant now to fear either serious or significant harm’.

19    This view of affairs is supported by [5], [24] and [30] of the Tribunal’s reasons but it is contradicted by [13] and [18]. I agree with the Federal Circuit Court that if the Tribunal had concluded that the appellant had no well-founded fear of significant harm and had taken into account in reaching that conclusion the fact that the cousin had been abducted then one would readily conclude that this claim had been assessed under the rubric of the protection claim. I respectfully part company, however, with the Federal Circuit Court’s conclusion that the abduction of the cousin had actually been considered by the Tribunal. Although the matter is not free from doubt, the failure of the Tribunal to address the question when assessing the appellant’s credit or under the section explicitly dealing with abduction risk persuades me that it is more likely than not that the Tribunal did not assess this issue.

20    I accept, therefore, that the Tribunal did not consider the appellant’s claim that his cousin had been abducted in considering the issue of complimentary protection. In that circumstance, the Tribunal has failed to conduct the review it was bound to perform which is a jurisdictional error. That is sufficient reason to allow the appeal.

21    I should say for completeness that the Tribunal’s disbelief of the appellant was based in part on the fact that none of his family had been harmed. This seems more than odd in light of his claim, which the Tribunal did not appear to reject, that his cousin had been abducted. Other parts of the Tribunal’s reasons approached at times, if they did not actually embrace, the idea that the appellant had no risk of being kidnapped because he had not been kidnapped before, a style of reasoning whose virtues are not at once obvious. To my mind, there are aspects of the Tribunal’s reasoning which suggest to the disinterested observer an enthusiasm to reject the claim which may not be wholly warranted.

22    It is not necessary to deal with the appellant’s remaining points in light of that conclusion. Had it been necessary, I would have rejected the claim that the Tribunal had overlooked dealing with the appellant’s claim to belong to the particular social group of young Tamil males from East or North Sri Lanka who departed illegally. A fair reading of the Tribunal’s reasons shows this was dealt with. I would have permitted the appellant to raise Ground 1A although I would have rejected it.

23    The orders of the Court will be:

1.    The appeal be allowed with costs.

2.    The orders of the Federal Circuit Court be set aside and in lieu thereof order:

1.    Order absolute in the first instance for a writ of certiorari to quash the decision of the Refugee Review Tribunal of 29 May 2013;

2.    Order absolute in the first instance for a writ of mandamus directed to the Refugee Review Tribunal to determine the applicant’s review application according to law; and

3.    The second respondent to pay the applicant’s costs.

Dated:    24 February 2015