FEDERAL COURT OF AUSTRALIA

MZZUT v Minister for Immigration and Border Protection [2015] FCA 141

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This appeal is brought from a judgment and orders of the Federal Circuit Court, made on 13 August 2014 in MZZUT v Minister for Immigration & Anor [2014] FCCA 2054 (‘Federal Circuit Court Judgment’), dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) dated 4 October 2013. The Tribunal affirmed an earlier decision of a delegate of the first respondent (‘the Minister’) not to grant the appellant a Protection (Class XA) visa (‘the visa’).

BACKGROUND

2    The appellant is a Tamil Hindu male who is a citizen of Sri Lanka. He left Sri Lanka in 2009, and ultimately arrived in Australia in May 2012. He applied for a protection visa on 6 August 2012, which a delegate of the Minister refused to grant on or around 12 September 2012.

3    The appellant appeared before the Tribunal on 6 December 2012, 2 August 2013 and 12 September 2013 to give evidence and present arguments. The Tribunal affirmed the delegate’s decision on 4 October 2013.

THE TRIBUNAL’S DECISION

4    The Tribunal’s key findings may be relevantly summarised (as agreed by the appellant and first respondent) as follows:

(a)    The appellant was a Tamil who was born and lived in the Kilinochchi and Jaffna districts in northern Sri Lanka. He went to Qatar in 2006 in order to avoid forced recruitment by the LTTE, before returning to Sri Lanka in 2008 due to the ill-health of his mother.

(b)    The appellant was arrested and detained by the Sri Lankan army in early 2009, during which detention he was physically assaulted and questioned about whether he was a member or supporter of the LTTE. The appellant’s mother paid a bribe to obtain his release from detention. The Tribunal found that the appellant’s arrest was associated with a routine round-up following a bomb blast in the city, and that the appellant had not been suspected of being a member of the LTTE.

(c)    The Tribunal accepted that the Sri Lankan authorities visited his family’s home after his departure from Sri Lanka in 2009, but found that those visits had resulted from a report made to the police by his family and did not indicate that the appellant was of adverse interest in Sri Lanka. The Tribunal found that it was implausible that the authorities had visited his home in July or August 2012 and asked whether he was in Australia.

(d)    The Tribunal found that there was no real chance that the appellant would be subjected to serious harm on account of his Tamil race or ethnicity, or as a member of the particular social group of Tamils from the north of Sri Lanka.

(e)    The Tribunal found that there was no real chance that the appellant would be seriously harmed on account of his real or imputed political opinion. This conclusion rested on findings that the appellant was not suspected of involvement with the LTTE and was not a person of interest to the Sri Lankan authorities.

(f)    The Tribunal accepted that there was ongoing monitoring of returnees to Sri Lanka after they returned to their home area. However, because the appellant was not otherwise a person of interest to Sri Lankan authorities, the Tribunal found that there was no real chance that he would be subjected to serious harm as a consequence of such monitoring.

(g)    Similarly, on the basis of its findings that the appellant did not depart Sri Lanka illegally, was not suspected of involvement with the LTTE and was not a person of interest to the Sri Lankan authorities, the Tribunal was not satisfied that there was a real chance that the appellant would be seriously harmed in the course of re-entry processing, nor that he would be arbitrarily arrested and detained if he returned to Sri Lanka.

(h)    For essentially the same reasons to those set out above, the Tribunal was not satisfied that there were substantial grounds for believing there was a real risk that the appellant would suffer significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka, within the meaning of the criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).

FEDERAL CIRCUIT COURT

5    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision on 23 October 2013. On 13 August 2014, the Federal Circuit Court dismissed the application for judicial review.

6    The only ground of review advanced before the Federal Circuit Court was that “[t]he Tribunal erred by failing to consider a claim or a component integer of a claim, made by the applicant” being that the appellant was a person to whom Australia owed protection obligations:

(a)    by reason of a well-founded fear of persecution because of imputed political opinion (being regarded as a ‘mouthpiece’ or ‘supporter’ of the LTTE) or membership of a particular social group being returnees to Sri Lanka; and/or

(b)    by reason that he was at real risk of significant harm within the meaning of section 36(2)(aa) of the Act because of the intimidation, extortion and threats to which he might be subjected following his return to Sri Lanka.

7    The appellant submitted “that [the Tribunal’s] finding was made in relation to a risk of harm from the Sri Lankan authorities and not to the claimed risk of harm from persons other than the Sri Lankan authorities, being from armed groups”: Federal Circuit Court Judgment at [16].

8    The appellant relied upon written submissions to the Tribunal dated 24 September 2013 (‘Post-hearing Submissions’), said to raise this claim, which Post-hearing Submissions included amongst others, the following paragraph:

In addition to the ongoing risks of re-arrest and detention, a previous research response from the Immigration and Refugee Board of Canada in August 2011 also refers to returnees’ vulnerability to intimidation and extortion. The research response referred to sources that indicated returnees remained “vulnerable to abduction and extortion by armed groups” due to the lack of programs or policies to assist with their integration into society. A key part of the vulnerability faced by returnees was also suggested in this research response as a result of the stigma attached to the returnees. A source referred in the research response said returnees were viewed with “suspicion”, and are generally seen as “‘traitors’, or ‘those who brought the country to disrepute’ and ‘... lied about the situation in the country abroad’”. Returnees were seen to be subject to “systematic media attacks” and as being characterized, together with the wider Tamil diaspora community, as being “LTTE mouthpieces and supporters”.

(Footnotes omitted and emphasis added)

9    In dismissing the application of judicial review, the Federal Circuit Court held (at [18]) that:

… the finding of fact by the Tribunal [that there was no real chance that the appellant would be seriously harmed for reason of his real or imputed political opinion] was confined to a risk from Sri Lankan authorities and that the claim of a risk from armed groups was not clearly apparent on the material before the Tribunal.

(Citations omitted)

10    The Federal Circuit Court found (at [12]) that the paragraph quoted above from the Post-hearing Submissions (‘Extracted Paragraph’) “merely refers to a piece of evidence contained in country information, and makes no suggestion that the [appellant] made a claim along those lines”. The Federal Circuit Court added that any claim allegedly not considered by the Tribunal was not substantial nor clearly articulated: at [25]-[28].

11    The Federal Circuit Court concluded (at [24]) that in the Tribunal’s decision, “there was a failure to refer to a piece of evidence [which does not amount to jurisdictional error], but not a failure to deal with an integer of the [appellant’s] claims.”

NOTICE OF APPEAL

12    The notice of appeal in this Court advances two grounds:

1.    The Federal Circuit Judge erred by failing to address the [appellant’s] submission that the second respondent’s decision was in error because the tribunal, having held that the “[appellant] has advanced no additional reason ... for fearing that he would suffer significant harm if returned to Sri Lanka” as a consequence failed to consider the [appellant’s] claim to fear significant harm from (non-government) armed groups if he was returned to Sri Lanka.

2.    The Federal Circuit Judge erred by finding that the [appellant] raised no new arguments after the close of oral hearing.

CONSIDERATION

13    In order to make out either ground of appeal, the appellant seeks to establish that the appellant’s Post-hearing Submissions to the Tribunal contained a discrete claim that was not considered by the Tribunal.

14    There is no doubt that the Tribunal must correctly construe and consider each claim (including each element or integer of each claim and the cumulative effect of each claim) made by an applicant: see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J, Spender and Merkel JJ agreeing, and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (‘Dranichnikov’) at [22]-[24], [27] per Gummow and Callinan JJ, Hayne J agreeing, and at [88]-[89] per Kirby J.

15    The Tribunal will fall into jurisdictional error if it fails to consider the component integers of each claim made by an applicant: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [45], and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (‘NABE’) at [55] and [63]. This includes claims that are expressly raised by an applicant or are apparent on the material before the Tribunal: see NABE at [58]-[61] per Black CJ, French and Selway JJ.

16    The appellant submitted that the error in this case arose from a failure to consider a claim that was made by reference to the Extracted Paragraph, with support from the following paragraphs from the Post-hearing Submissions:

Being at the very least forced to encounter ongoing acts of extortion or intimidation and the threats that would follow from such acts, we believe, would amount to at least significant harm as defined under section 5(1) of the Act.

…

We also contend that [the appellant] is at risk of significant harm after release into the community, whether or not he serves a year in prison.

17    In particular, the appellant submitted that the term “armed groups” in the Extracted Paragraph refers specifically to persons other than the Sri Lankan authorities, and that the words “[i]n addition” make it clear that the claim was advanced in addition to the claims concerning the risks of arrest and detention by the Sri Lankan authorities. The important distinction made by the appellant was that the source of the potential harm, and the type of harm, in each of the claims was different. The source of the potential harm was government or government-affiliated authorities on the one hand, and separate non government-affiliated “armed groups” on the other. The different types of harm included arrest and detention by the former source, and intimidation or extortion by the latter.

18    I observe at the outset that the appellant had legal representation at the time that he lodged his application for the visa and when he filed both the earlier written submissions on 20 November 2012 and the Post-hearing Submissions. This has some (non-determinative) significance in the way the Tribunal is expected to conduct the proceeding and in the way it would read and approach submissions.

19    If there was to be a new claim from those clearly and separately articulated in the submissions dated 20 November 2012, or at the three hearings before the Tribunal, the Tribunal would expect such a new claim to be identified as such. This is especially so if a distinction was to be drawn between “armed groups” which are affiliated with the government, and those which are not, and therefore to a purportedly different type of harm than previously articulated by the appellant. In fact, on reading the Post-hearing Submissions, and the Extracted Paragraph in particular, I am not at all convinced that on its face, the reference to “armed groups” is a reference to “armed groups” which are divorced from government.

20    It is also useful to recall the comments of Kirby J in Dranichnikov at [78]:

… The tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This court has rejected that approach to the tribunal’s duties. The function of the tribunal, as of the delegate, is to respond to the case that the applicant advances. A fortiori this is the function of the Federal Court in determining any application to it for judicial review of a decision of the tribunal.

(Footnotes omitted)

21    Upon a reading of the Extracted Paragraph and additional paragraphs relied upon by the appellant, I conclude that no claim or integer of the claim is raised in the manner now contended for by the appellant. I also do not consider that the purported claim is sufficiently apparent on the material before the Tribunal for it requiring separate consideration.

22    A number of reasons support this approach.

23    The Post-hearing Submissions must be read in context. Part of this context is that the appellant originally only claimed harm from Sri Lankan authorities and the types of harm referred to by the appellant included intimidation and extortion by government authorities or government-affiliated groups. For instance, in the 20 November 2012 submissions the appellant’s claim was limited to government and affiliated groups but referred generally to a fear of persecution:

Our client’s claims: We submit that our client’s claims fall within the ambit of the UNHCR Refugees Convention and Protocols but, in the event the decision-maker is not satisfied that is the case, we have made some submissions regarding Australia’s complementary protection obligations following the refugee submissions.

In summary, our clients fears persecution because Sri Lankan Government security agencies and affiliated paramilitary organisations suspect that he is linked with the LTTE.

Our client was detained 1½ month during which time he was severely beaten in an effort to extract a confession from him acknowledging his involvement with the LTTE, the authorities extorted 30 000.00 S/L Rupees from our client and released him.

Our client fears he will be persecuted by the authorities should he return to Sri Lanka because he was suspected of been a member of the LTTE and follows his imputed political opinion.

In addition, our client fled Sri Lanka illegally and he fears he will be intercepted on return to Sri Lanka, accused of supporting the LTTE, this will be reinforced by the fact our client was born in the Northern province of Sri Lanka and this will potentially expose him to dire consequences.

(Footnotes omitted and emphasis added)

24    Throughout the 20 November 2012 submissions, the appellant made reference to armed or paramilitary groups. Most of these references were made in relation to the activities of government authorities, including paramilitary proxies (of the government). However, the appellant’s claims as articulated in those submissions (as set out above) made a reference to persecution from those same sources. It is apparent from other parts of the appellant’s submissions that “persecution” includes harm such as torture, ill-treatment, killings, abductions, intimidation and not just arrest and detention.

25    Further, the Post-hearing Submissions commenced with the words: “We refer to the 3rd hearing of this application on 12 September 2013, and hereby provide you with further submissions”. In using this introduction, the appellant’s legal representative was directing the Tribunal’s attention to the matters that transpired at the hearing on 12 September 2013. However, the appellant does not suggest that the purported claim arises in any way from anything that occurred on that occasion.

26    A fuller extract of Post-hearing Submissions than that relied upon by the appellant is also useful to demonstrate context:

Amongst other matters discussed at hearing, evidence provided by the [appellant] confirms that whilst he may have been the holder of a passport at the time of his departure from Sri Lanka, he was only able to exit the country after payment of bribes to an agent whom he paid with the specific purpose of ensuring his unhindered, and lawful, exit from Sri Lanka.

Other evidence re-confirms his testimony that prior to his departure he has been the subject of arbitrary arrest, detention and torture at the hands of the Sri Lankan Army. Furthermore the [appellant’s] evidence is that authorities have visited his home on a number of occasions in attempts to locate him and have an ongoing interest in him.

Not withstanding information referred to at hearing and available from V14 Home Office Guidance Note for Sri Lanka Issued July 2013, we submit that this report is not exhaustive and urge the Tribunal to consider a range of country information as discussed below.

(Footnotes omitted and emphasis added)

27    The Post-hearing Submissions, after setting this scene and making particular reference to discussions at the hearing and evidence given as to “arrest, detention and torture”, then go on to the matters relied upon by the appellant, including the matters contained in the Extracted Paragraph.

28    The reference in the Extracted Paragraph to “armed groups” was taken from a research response by the Immigration and Refugee Board of Canada referring to types of harm at the hands of “armed groups” and has the same status as the paragraph preceding it, that is “[t]he UNHCR’s Eligibility Guidelines also [refer] to ongoing monitoring by the security services of returnees after they return to their home area”. It follows that both this reference and the references to “armed groups” bolster and support the appellant’s claim of a risk of significant harm and fear of persecution at the hands of the government or groups sanctioned by, or affiliated with, Sri Lankan authorities.

29    It is significant that for many more pages the Post-hearing Submissions detail country information and other risks of persecution, including incarceration and arbitrary detention. Again, these various types of harm were directed to government authorities and affiliated groups.

30    The references in the Post-hearing Submissions, which were filed after the third hearing and were supplementary to the matters discussed at that hearing, do not suggest any new claim, whether relating to a new type or source of feared harm. As I mentioned above, the harm feared from “armed groups” could come from government-affiliated armed groups, since the harm of “intimidation and extortion” is a sub-set of the feared harm of “persecution” as articulated in the claims made by the appellant form the outset.

31    By way of conclusion, I address a specific contention of the appellant relating to the distinction between claims and evidence.

32    The appellant contended that there was an express separate claim made, and not just a reference to a piece of evidence. For example, the appellant submitted that directly after referring to the country information, the Post-hearing Submissions stated that “[b]eing at the very least forced to encounter ongoing acts of extortion or intimidation and the threats that would follow from such acts, we believe, would amount to at least significant harm”, and it therefore constituted an articulated claim.

33    The appellant also contended that the Federal Circuit Court erred in finding that the claim was not clearly apparent on the material before the Tribunal, including in particular the Post-hearing Submissions. In this regard, it was submitted that the Federal Circuit Court was wrong to rely on a purported dichotomy between claims made by the appellant on the one hand, and “a piece of evidence contained in country information” on the other.

34    It was further contended that in any event the relevant country information referred to in the Post-hearing Submissions was more than mere evidence which, if accepted, might have led the Tribunal to make a different finding of fact. Rather, the Post-hearing Submissions raised an additional contention which, if accepted, might establish that the appellant had a well-founded fear of persecution.

35    I agree that there is no clear or bright line distinction between claims and pieces of evidence: see, eg, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111] per Robertson J. However, this appeal is to be disposed of not by reliance on that distinction, but simply by a reading of the Post-hearing Submissions, looking at their context and terms, to determine whether a new claim or integer of a claim was made, or is apparent in the relevant sense, as now characterised by the appellant.

36    My approach leads to that question being answered in the negative. Once this conclusion is reached, the Tribunal was under no obligation to consider the purported claim. If I had come to the view that the purported claim was in fact made, or was even raised on the materials before the Tribunal in a way that required it to be considered by the Tribunal as a separate claim (or even a material part of a separate claim), my conclusion would have been different. In that situation, there would have been jurisdictional error.

CONCLUSION

37    In light of the foregoing reasons, the appeal is dismissed with costs.

Associate:

Dated:    2 March 2015