FEDERAL COURT OF AUSTRALIA

SZSYE v Minister for Immigration and Border Protection [2015] FCA 449

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    The appellant is a citizen of Sri Lanka. He first arrived in Australia on 17 May 2012. He applied for a Protection (Class XA) visa (Protection visa) on 22 August 2012. This is an appeal from a decision of the Federal Circuit Court of Australia, published as SZSYE v Minister for Immigration and Border Protection [2015] FCCA 433. By that judgment, a judge of the Federal Circuit Court (primary judge) dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 22 May 2013, affirming the decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Protection visa.

2    The task of the primary judge was to determine, by reference to the appellant’s grounds of appeal, whether the decision of the Tribunal was affected by jurisdictional error. My task, by reference to the appellant’s Notice of Appeal filed in this Court, is to determine whether the judgment of the primary judge is affected by any appellable error. The appellant’s Notice of Appeal filed in this Court is brief. It contains a single ground of appeal, as follows:

I stated my grounds of appeal and the particulars in my Amended Application of my federal circuit court filed and served.

3    The appellant is not legally represented. It is apparent from the appellant’s ground of appeal that what, in truth, the appellant seeks to do is re-agitate the grounds of appeal that were agitated before the primary judge. Whilst the Minister identified the inadequacy of the Notice of Appeal, the Minister accepts that the ground of appeal raised in this Court may be treated as an allegation by the appellant that, in rejecting each of the grounds raised before the Federal Circuit Court, the primary judge erred by failing to identify jurisdictional error in the decision of the Tribunal. I intend to proceed on that basis.

4    The grounds advanced before the primary judge are set out at [3] of the primary judge’s reasons for judgment. There are four grounds and they are as follows:

Ground 1

The Tribunal stated (CB 201, RRT decision at p16 at [46]) “… The only clear evidence before the Tribunal is that Kumar was a Tamil businessman in Mullaitivu who was abducted in in December 2011 by unknown men in white van. …”. The Tribunal committed jurisdictional error by conflating the issues about the end of war with LTTE and / or is or affected by illogicality.

Particulars

The Tribunal considered that the LTTE was defeated 18 months prior to December 2011 (CB 205, RRT decision at p20 at [57]) and thus the event has not occurred. The Tribunal’s finding is illogical in that the two events are independent events.

Ground 2

The Tribunal committed jurisdictional error when it failed to properly assess that the Applicant would be in foreseeable future and / or made finding in the absence of the evidence.

Particulars

The Tribunal did not properly assess the issue whether there was risk that there would be loss of liberty having found that there would be deprivation of liberty (CB 209.RRT decision at p24 at [71]) but failed to address whether there was foreseeability of future deprivation of liberty. The Tribunal further committed jurisdictional error when it found that the Applicant is likely to be detained for 4 days (at [81]) (relying on material at (CB 225 277; RRT decision at p40–42 at [122]–[126]) when the material considered one situation and is not evidence that Applicant is likely to be detained for 4 days only.

Ground 3

The Tribunal erred in the interpretation of s 91R and the serious harm that the Applicant is likely to suffer.

Particulars

The Tribunal found that there would be deprivation of liberty (CB 209; RRT decision at p24 at [71]) but considered that considered that such deprivation of liberty did not constitute serious harm. The Applicant contends that the Tribunal has committed jurisdictional error and has misconstrued s 91R in conjunction with the definition of s 5(1) of “cruel or inhuman treatment or punishment” and erred in the interpretation of s 91R of the Act. The Applicant contends that the harm is serious nature to fall within s 91R as interpreted under the Act.

Ground 4

The Tribunal committed jurisdictional error in its consideration of complementary protection under ss 36(2)(aa); 36(2A) when it failed to consider the Applicant’s claim that would he would suffer serious harm upon being returned to Sri Lanka from certain Sinhalese persons.

Particulars

The Applicant had claimed specific threat from the Sinhalese persons [crew] (CB 13-16) throughout the journey [as per entry interview] and on Christmas Island and identified certain persons.

The Tribunal found that on the basis that after some time the Applicant did not know the whereabouts of the crew there would be no harm (CB 203 at [52]; CB 209 at [71]). The Tribunal fell into error when it failed to consider whether the Applicant is likely to suffer harm upon return to Sri Lanka. The Tribunal misdirected its enquires.

The finding was not based on evidence.

(errors and emphasis as in original)

5    For ease of reference, and in light of what I have said at [3] above as to the form of the appellant’s Notice of Appeal, I will refer to these four grounds as though they were grounds of appeal before me.

6    By way of introduction, it is necessary to set out in overview some of the background facts. An overview is given at [2] of the Tribunal’s reasons for decision. As is there stated:

The applicant arrived in Australia by boat without a visa on 17 May 2012 and claimed that his safety and liberty would be in danger if he was returned to Sri Lanka. He claims that he is Tamil and was born in the Badulla district of UVA province of south eastern Sri Lanka in June 1980. In 2008 he moved to the west coast and began to reside in Udappu and worked as a truck driver for a seafood business in Mullaitivu owned by a wealthy Tamil man. He claims that in late 2011 his boss was abducted in Mullaitivu by armed men in a white van and that a month later he was also abducted by armed men in a white van from his home in Udappu. He managed to escape from the men and went into hiding before leaving Sri Lanka by boat without the knowledge of the government. He claims that unknown men have been back to his house looking for him on a number of occasions.

7    With the assistance of a migration agent, the appellant submitted to a delegate of the Minister that he had a well-founded fear of persecution because of his Tamil ethnicity, his actual/imputed/perceived political opinion including of being an actual/perceived sympathiser/supporter of the LTTE, or as being against the Sri Lankan government due to his employer’s perceived support of the LTTE, or because of his membership of the particular social group of Tamil men returning to Sri Lanka as failed asylum seekers.

8    The Minister’s delegate rejected the appellant’s application for a Protection visa. The delegate accepted that the appellant had worked as a truck driver as he had claimed. Whilst the delegate indicated that she was prepared to accept that the appellant’s boss had been abducted, the delegate did not accept that the appellant had been abducted and found that the appellant had fabricated the claim to enhance his protection claim. The delegate did not accept that the appellant was of any interest to the Sri Lankan Army or the government of Sri Lanka, and found that, while he might be questioned by the authorities on his return, there was no reason to think he would be at risk of serious harm as he did not have a profile as a person of concern to the authorities.

9    The appellant sought review before the Tribunal. The Tribunal conducted a hearing on two separate occasions and received submissions from the appellant. I will deal more specifically with some of the findings made by the Tribunal as I address each of the grounds of appeal. It is helpful at the outset, however, to identify that the Tribunal found that the appellant was not a reliable witness. To summarise what was said by the Tribunal at [35] of its reasons, the Tribunal found that the appellant was an unreliable witness who was prepared to provide untruthful evidence to enhance his claims. He had provided contradictory and inconsistent evidence relating to a number of aspects of his main claims and the Tribunal formed the view that he was prepared to exaggerate and embellish his evidence when necessary.

10    Whilst the Tribunal was prepared to accept that the appellant, as a result of his situation, had been under great stress, the Tribunal did not consider that that matter provided a satisfactory explanation for the significant inconsistencies in the appellant’s evidence. In light of that, the Tribunal did not accept key aspects of the appellant’s account of what occurred to him in Sri Lanka and the reasons he left and fears returning.

Ground 1

11    Relevant to this ground is the appellant’s claim to fear persecution in Sri Lanka by reason of his Tamil ethnicity and imputed pro-LTTE political opinion. Part of the rationale advanced by the appellant in support of that claim was that he had worked as a truck driver for a wealthy Tamil businessman (Kumar). He claimed that Kumar had been abducted by the Sri Lankan Army (SLA) because the SLA suspected that Kumar was a supporter of the LTTE. The appellant had claimed that he suspected that the SLA thought that he was smuggling weapons in trucks owned by Kumar.

12    In essence, the ground challenges the Tribunal’s finding made rejecting the appellant’s claim that Kumar was abducted by the SLA, including by reason of any suspicion that Kumar had past involvement with the LTTE. That finding is, in part, contained in [46] of the Tribunal’s reasons which, relevantly, states as follows:

However, having found that the applicant was an unreliable witness who was prepared to fabricate and embellish his evidence to enhance his claims, the Tribunal has no confidence in accepting his evidence about his suspicions about the SLA and the LTTE. The only clear evidence before the Tribunal is that Kumar was a Tamil businessman in Mullaitivu who was abducted in late December 2011 by unknown men in a white van. Considering the abduction occurred more than two and a half years after the LTTE was last active in Sri Lanka, on the evidence before it, the Tribunal is not prepared to accept that Kumar was abducted by the SLA as the applicant claimed, or that Kumar had any past involvement with the LTTE or that the GoSL [Government of Sri Lanka] perceived that Kumar had an association with the LTTE or that the GoSL perceived that Kumar had an association with the LTTE on the basis that he was a rich Tamil businessman or that the reason for his abduction was his past involvement with the LTTE.

13    Additionally, at [57] of its reasons, the Tribunal said:

The applicant claimed that his association to Kumar would be a reason why the GoSL would suspect him of being or having been involved with the LTTE. However, as noted above, the Tribunal does not accept on the evidence before it that Kumar was abducted by the SLA, or that Kumar had any association with the LTTE or that the GoSL perceived him as having such an association or that the reason Kumar was abducted was because he had a connection to the LTTE. In any event, as was put to the applicant at the second hearing, it is difficult to understand why the applicant would be suspected of having had an involvement with the LTTE through his work with Kumar when that work commenced more than 18 months after the LTTE was defeated. In this context, as noted above, the Tribunal considers that his (untrue) evidence at the first hearing that he started work with Kumar in April or May 2009 was an attempt to make it seem more plausible that he could have been suspected of having had a link to the LTTE with his work for Kumar. Having carefully considered [all] of the evidence before it, for all of the above reasons, the Tribunal does not accept that the GoSL authorities would, in the reasonably foreseeable future, suspect the applicant of having a connection to the LTTE because of his work with Kumar between December 2010 and December 2011.

14    It can be seen from the paragraphs set out above that the Tribunal accepted that Kumar had been abducted, but did not accept that Kumar had been abducted by the SLA or that the abduction had anything to do with perceived support for the LTTE. Primarily, that non-acceptance was based on the Tribunal not accepting the appellant’s evidence that he had been told those facts by a young man (see at [46]).

15    Ground 1, in essence, seems to assert that the Tribunal had conflated two issues, the first issue being the abduction of Kumar, and the second issue being the end of the war with the LTTE. It asserts that the Tribunal’s consideration of the fact that the LTTE was defeated 18 months prior to December 2011 was illogical in that “the two events” (which I take to be a reference to the abduction on the one hand and the end of the war on the other) are “independent events.” It is to be observed that the reference made in the particulars to ground 1 to the period of 18 months is taken from [57] of the reasons of the Tribunal. The reference to 18 months was there made as being the period between when the LTTE was defeated and when the appellant commenced work for Kumar. The Tribunal’s more pertinent finding is that which was made at [46] of the Tribunal’s reasons. There, in coming to the view that it was not prepared to accept that Kumar was abducted by the SLA, the Tribunal took into consideration that the abduction had occurred more than two and a half years after the LTTE was last active in Sri Lanka.

16    Two things may be said about that. Firstly, as the primary judge observed at [12] of the primary judge’s reasons for judgment, the duration of the period during which the LTTE had been inactive was only part of the Tribunal’s analysis in relation to the abduction. Secondly, it seems to me that there is a rational connection between when the LTTE ceased to be active and the question of whether or not Kumar was abducted by the SLA on suspicion of being involved with the LTTE.

17    The primary judge rejected the appellant’s claim of illogicality. I am unable to discern any error in that conclusion. For those reasons ground 1 should be rejected.

Ground 2

18    As best as I can discern, ground 2 seems to have two aspects. The first aspect of ground 2 seems to assert that the Tribunal failed to address the foreseeability of future deprivation of liberty of the appellant. The context in which that claim is made suggests that what is being asserted is that, having found that the appellant would likely be detained for four days on being returned to Sri Lanka, the Tribunal failed to address whether the appellant was likely to be exposed to any further or future deprivation of liberty.

19    The Tribunal accepted that there was a likelihood that the appellant, if returned to Sri Lanka, would be charged under the Immigrants and Emigrants Act of 2006 with having illegally departed Sri Lanka. In that context, the Tribunal considered the extent of the appellant’s likely detention and thus the extent to which his liberty would be deprived on his return to Sri Lanka. The Tribunal’s consideration can be found, in particular, at [71]:

As discussed with the applicant, the available sources indicate that after being charged on return, it is possible he might spend up to four days in custody on remand before being brought before a magistrate, and that the conditions in remand cells were below international standards and were overcrowded, dark, unclean and cramped (see [paragraph] 125), however, the information before the Tribunal did not indicate that people detained in these circumstances had been subjected to any physical harm or threats of harm during the period of remand (see paragraphs 122 to 126). When asked to comment on this information, the applicant re-stated his claims that the SLA would harm him because of his work with Kumar and they would torture him while he was locked up. As noted above, the Tribunal does not accept that he would suffer harm for these reasons and it does not accept that his work for Kumar would be a reason why there is a real chance he would suffer serious harm on remand. With regards to his loss of liberty while on remand, because it arises through the operation of a law of general application, the Tribunal finds that it does not amount to persecution for the purposes of s 91R. With regards to the period of time in which he is on remand, although the conditions of the remand cell he might be kept in would cause him to suffer discomfort and irritation, on the evidence and information before it, the Tribunal does not accept that, in his particular circumstances and with his attributes, there is a real chance he would suffer serious harm for any reason.

20    Although later in its reasons for decision (and in particular at [83], whilst addressing the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth)), the Tribunal did consider the possibility of the appellant being imprisoned for having contravened the Immigrants and Emigrants Act, it was not necessary for the purpose of determining whether the appellant had a well-founded fear of persecution based on a Convention reason (the s 36(2)(a) criterion) for the Tribunal to have considered whether the appellant would be deprived of his liberty by reason of any sentence imposed upon him for contravention of the Immigrants and Emigrants Act. That is because, as is apparent from what I have quoted from [71] of the Tribunal’s reasons, the Tribunal found that the Immigrants and Emigrants Act was a law of general application.

21    Punishment of a non-discriminatory kind for contravention of a criminal law of general application is not ordinarily persecution for a Convention reason: see Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [21] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). There was no suggestion here that the Immigrants and Emigrants Act would be applied in such a way as to be persecutory: see SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 at [134]. In those circumstances it was not necessary for the Tribunal to address the foreseeability of the future deprivation of liberty arising out of a contravention of the Immigrants and Emigrants Act.

22    The primary judge reasoned essentially to the same effect (see at [22]-[23] and [27]). No appellable error has been demonstrated and ground 2 should be rejected as to its first aspect.

23    I then turn to the second aspect of ground 2. It seems to me that here the appellant is claiming that there is no evidence to support the finding (made at [71] of the Tribunal’s reasons) that it is likely that the appellant would only be detained for four days on return to Sri Lanka. That allegation, it seems to me, is without any merit, and the primary judge determined that to be so at [29] of the primary judge’s reasons for judgment. His Honour there identified a number of paragraphs in the decision of the Tribunal that were material in support of the impugned finding. I note, as well, that at [30] of the Tribunal’s reasons the Tribunal refers to DFAT information to the effect that, on return to Sri Lanka, a person who has left through irregular methods can be expected to be charged and held in remand for “a few days at most.” There was material before the Tribunal upon which its finding that the appellant would likely be detained for four days was based. I reject the second aspect of ground 2.

Ground 3

24    This ground asserts that the Tribunal erred in its interpretation of s 91R of the Migration Act. In particular, by raising the issue of serious harm, ground 3 seems to challenge the Tribunal’s interpretation of s 91R(1)(b). Section 91R(1) is in the following terms:

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

25    The basis upon which it is asserted that the Tribunal misinterpreted s 91R is not clear. When this ground was agitated before the primary judge, it was treated as impliedly raising a decision of a single judge of this Court in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. It was there held that a threat to life or liberty constituted serious harm for the purposes of s 91R without reference to the severity of the consequences to life or liberty (at [30]).

26    The primary judge held that the Tribunal had made a qualitative assessment of the likely conditions while on remand and had thereby fallen into error (see at [37]). However, the primary judge held that s 91R(1) established cumulative conditions and that it was necessary that all three conditions be met for s 91R(1) to apply. The primary judge relied, in that respect, on SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252 at [69] (Katzmann J). The primary judge referred to the Tribunal’s finding that the Immigrants and Emigrants Act was a law of general application and said that, in that light, paragraphs (a) and (c) of s 91R(1) would not be satisfied even if paragraph (b) was satisfied. Therefore, the primary judge reasoned, no jurisdictional error was revealed in the Tribunal’s conclusion that s 91R was not satisfied in the appellant’s circumstances (see at [40] to [48] of the primary judge’s reasons). It was on that basis that the primary judge rejected ground 3. I do not discern any error in the approach taken by the primary judge. What is more, and in any event, it was held by a Full Court of this Court in SZTEQ that WZAPN was wrongly decided. The Tribunal’s reasoning in regard to s 91R(1)(b) can now, for that reason, be regarded as permissible.

27    For those reasons, I reject ground 3.

Ground 4

28    Ground 4 relates to the Tribunal’s consideration of the complementary protection criterion under s 36(2)(aa) of the Migration Act. It is asserted that the Tribunal failed to consider the applicant’s claim that he would suffer serious harm from certain Sinhalese persons upon being returned to Sri Lanka. The particulars suggest that the harm feared arose as a result of threats made to the appellant by Sinhalese persons who were the crew of the boat in which the appellant travelled to Australia. It is alleged, essentially, that the claim was not considered. The primary judge’s answer to that claim was short (see at [50]–[54]). It was that the claim of persecution at the hands of certain Sinhalese persons was in fact addressed at [52] and [84] of the Tribunal’s reasons for decision. It is clear from the contents of those paragraphs that the primary judge was correct to so conclude. There is no discernible error raised by ground 4 and it must be rejected.

Conclusion

29    I note, in concluding, that the appellant made oral submissions to the Court. In the main, those submissions sought impermissibly to address the merits of his claim. The appellant also asserted that the primary judge had not dealt with a complaint that he had made that his evidence before the Tribunal, or at least part thereof, had not been properly interpreted. As Counsel for the Minister pointed out, the contents of [49(a)] and [50] of the Tribunal’s reasons show that the appellant made some complaint as to inaccurate translation to the Tribunal. Insofar as that complaint was made, it appears that the Tribunal rejected that the interpreter had mistranslated the appellant’s evidence. Second, it appears from [50] of the Tribunal’s reasons that the appellant resiled, at least to some extent, from that complaint. Third, there is nothing before me to indicate that the issue of mistranslation was raised before the primary judge at all. Nor was that matter properly raised as a ground of appeal before me.

30    In those circumstances, I am not satisfied that there was any jurisdictional error relating to the translation of the appellant’s evidence before the Tribunal.

31    For the foregoing reasons the appeal must be dismissed.

Associate:

Dated:    19 May 2015