FEDERAL COURT OF AUSTRALIA

ACC15 v Minister for Immigration and Border Protection [2016] FCA 97

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondents costs of the appeal.

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

REASONS FOR JUDGMENT

GILMOUR J:

1    This is an appeal from orders of the Federal Circuit Court made on 4 September 2015 dismissing the appellant's application for judicial review of a decision of the former Refugee Review Tribunal ("Tribunal"), dated 11 February 2015. The decision affirmed a decision (Delegate’s Decision) of a delegate (Delegate) of the Minister dated 1 October 2013.

2    The appellant is a citizen of Sri Lanka who arrived in Australia as an Irregular Maritime Arrival and subsequently applied for a protection visa. He claimed to be a Tamil-speaking Burgher and Roman Catholic, who had been detained, interrogated, and tortured on a number of occasions by members of what he took to be the Karuna Faction or Tamil Makkal Viduthalai Pulikal.

3    In an application dated 11 October 2013, the appellant sought review of the Delegate's Decision before the Tribunal. The appellant was represented by his migration agent and provided an extensive written submission dated 6 February 2014. The appellant attended a hearing before the Tribunal on 10 February 2015 and his representative attended by telephone. The Tribunal affirmed the delegate's decision. The appellant sought judicial review of this decision and his application was dismissed.

Appellant's claims

4    The appellant made the following claims. The appellant feared imprisonment, torture and being killed on his return to Sri Lanka by reason of his perceived Tamil ethnicity, religion (Roman Catholic), political opinion because of perceived links with the Liberation Tigers of Tamil Eelam (LTTE) and particular social group (failed asylum seekers). Those claims relied on extensive country information referred to in the appellant's written submissions to the Tribunal and his own evidence of what he said had happened to him in Sri Lanka.

5    In 2005, a group of Tamil-speaking men had come to his house, taken him away and kept him in a dark room for five days. During that time he was asked about weapons training with militant groups. He believed that the men were members of the Karuna Faction.

6    The men visited the appellant on five further occasions looking for him but he was never at home. Subsequently, with the help of his cousin, he went to Qatar to "seek safety" where he lived until 2009.

7    He returned to Sri Lanka in 2009 because he wanted to see his family. Sometime after getting married in February 2010, other men, who he also took to be members of the Karuna Faction, arrived at his house asking about him, arrested him and held him for two days. The men returned on three occasions, asking similar questions, about who he was and where he had been. Thereafter they monitored him. After the third occasion he feared what would happen to him if he left Sri Lanka.

Tribunal's Decision

8    The Tribunal accepted that the appellant was a Roman Catholic Burgher from Portuguese origins and that he had been detained for five days in 2005 and for a further 2 days in 2010 but found that the appellant was not of any on-going adverse interest to anyone after his release.

9    It did not accept that he was visited by men from the Karuna, or any other group, after he was released in August 2010. Nor did it accept his claims that, after the appellant left Sri Lanka in July 2012, the appellant's family was visited several times by men looking for the appellant, that his wife was threatened and that his brother was assaulted. All of these claims were rejected as being false.

10    The Tribunal:

(1)    based on country information was not satisfied that there was a real chance of the appellant being persecuted because of his Roman Catholic faith;

(2)    based on country information and the appellant's own evidence, was not satisfied that there was a real chance that he would be persecuted because he was perceived to be a Tamil, whether in employment or by reason of the impact of the "Sinhalisation" of the north of Sri Lanka.

11    The Tribunal was not persuaded that he had any profile or known link with the LTTE, given none of family members were associated with them. More generally, the Tribunal was not satisfied that he would be discriminated against in such a way as to constitute persecution by reason of being perceived as a Tamil. It was not persuaded that the appellant would be persecuted by the military given the general improvement in the security situation and it was not satisfied that there was a real chance that the appellant would come to harm by reason of the visits in 2005 and 2010 or that he would be suspected of military training. Similarly, it rejected the appellant's evidence about what had happened in Sri Lanka after the appellant left in 2012.

12    Based on country information, the Tribunal was not satisfied that the appellant would come to any serious or significant harm by reason of his illegal departure from Sri Lanka, in part because he did not have the requisite profile to be at risk and, in any event, the treatment of illegal returnees was a non-discriminatory law of general application.

13    Based on country information, the Tribunal was not persuaded that the appellant was at risk of serious or significant harm by reason of being a failed asylum seeker, given that the appellant did not have the profile to be of interest to the Sri Lankan authorities or to be perceived as an on-going threat to the authorities.

14    The Tribunal was not satisfied that the appellant would be at risk of significant harm given there was not a real chance that he would be subject to a custodial sentence and, even if he were detained, any detention would be only a few hours in duration and the appellant would immediately be given bail. At most, the appellant was only at risk of "some possible harassment".

The Federal Circuit Court

15    Judge Smith rejected a claim that the Tribunal had demonstrated actual bias by way of prejudgment, as well as the appellant’s claim based on the decision of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 ("WZAPN") as it was no longer good law having been overturned by the High Court: Minister for Immigration and Border Protection v WZAPN (2015) 89 ALJR 639. His Honour also rejected a claim that the Tribunal failed to consider whether "possible placement of me in overcrowded jail" in unpleasant conditions would be intentionally inflicted in circumstances where the "Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails" concluding that the case was distinguishable from the decision in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 ("SZTAL").

Ground of appeal

16    The ground of appeal is in the most general terms; that Judge Smith "erred in law and did not analyse well-founded fear test". It is not clear whether this is a challenge to the factual findings or is an assertion of an error of law by the Tribunal in misapplying what the appellant describes as the "well-founded fear test".

17    The appellant did not provide written submissions nor did he make any oral submissions on the hearing of his appeal.

Ground 1: the "well-founded fear" test

18    The Tribunal, under Article 1A(2) of the 1951 Convention Relating to the Status of Refugees, had to determine whether the appellant had a "well-founded fear of being persecuted for reasons of race, religion, nationality, [and] membership of a particular social [group] or political opinion", and in doing so it was required to consider both a subjective fear and an objective basis for that fear based upon a "real chance" of persecution.

19    The ground of appeal fails to identify any error made by the Tribunal. It is apparent from its decision that the Tribunal was conscious of its obligation to consider whether there was a "real chance" that the appellant would be persecuted and that it had regard to the objective, forward-looking enquiry based on the plausibility of the appellant's own evidence and the objective material contained in the country information. No jurisdictional error in this respect is evident.

Other possible grounds

20    Although not strictly necessary I have considered the issues which were before the Federal Circuit Court. I do so because the appellant does not, it seems, speak English, and was unrepresented by Counsel although he did have the services of an interpreter.

Actual bias and WZAPN

21    No error in this respect is evident. Any reliance upon WZAPN would be misconceived. It is no longer good law.

SZTAL

22    Judge Driver’s decision in SZTAL, which is the subject of an appeal to the Full Court and in which judgment has been reserved, can have no application to the appellant’s case. Whatever the outcomes of the appeal it is distinguishable on the facts from this case. It involved the appellant’s exposure to Sri Lankan prison conditions. Although the present appellant made claims about the harm he would come to upon his return, the Tribunal expressly rejected the claim that he would be imprisoned but accepted as a possibility that he might be detained briefly and then released. The Tribunal found that, at most, he would suffer "some possible harassment". The conclusion of the Tribunal at [73] was that there would be no period of imprisonment and only some harassment. Accordingly, any question of whether the harm was intentionally inflicted was not relevant. The Tribunal addressed the relevant definitions in s 5(1) of the Migration Act 1958 (Cth) of "cruel or inhuman treatment" and "degrading treatment or punishment" which relevantly require more than just intentional infliction of harm; the Tribunal found that the harm in his case was not, relevantly, sufficiently serious, significant, severe or extreme. No error has been established.

23    The Minister quite properly raised a possible further issue concerning whether the Tribunal may have breached s 425 of the Migration Act. The matter arises in the follow way.

24    In considering the question of what will happen to the appellant as an illegal returnee to Sri Lanka, the Tribunal found as a fact that: “if he was taken before a magistrate, I am satisfied he would be immediately given bail”. In doing so, the Tribunal referred in the decision to country information which stated that returnees have been granted bail with the requirement that a family member act as guarantor. The Tribunal’s finding is at [71] and there is a similar finding noting the release on personal recognisance at [51].

25    Although not relied on by the appellant, this raises an arguable claim that the Tribunal made an error of the sort identified by Griffiths J in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”). The decision in SZTQS has now been the subject of consideration by the Full Court of this Court in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 (“SZTAP”) which concluded that SZTQS does not stand for the high level proposition that in every case a family member being required to provide surety involves a breach of s 425 of the Act (at [76]) and that SZTQS was merely an example, specific to its facts, of the Tribunal’s review jurisdiction; the decision is necessarily fact specific (at [77]).

26    The facts of this case are distinguishable from those in SZTQS. In the present case the matter of bail was not an issue, either generally or in particular, as to the need for a family member to be a guarantor. There was no suggestion that the family member would be required to actually pay money before bail was granted. In SZTQS there was evidence that on a prior occasion the appellant’s mother had paid bail money for his release.

27    As in SZTAP at [79], on the facts of this case, I do not accept that it was critical to the Tribunal’s finding that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as an determinative factor in the mind of the Tribunal.

28    Moreover, as the plurality said at [80] in SZTAP, in the Federal Circuit Court, it appeared to have been assumed that providing surety involved the payment of money. That is not generally the case, unless the bailed person breaches the conditions of bail, and it is not the case here.

29    In any event, were it necessary, the information relied upon by the Tribunal as to the granting of bail was country information which, by reason of s 424A(3)(a) of the Migration Act, is not required to be brought to the attention of the appellant.

Conclusion

30    The appeal will be dismissed with costs.

Associate:

Dated:    12 February 2016