FEDERAL COURT OF AUSTRALIA

SZTDT v Minister for Immigration and Border Protection [2016] FCA 631

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing the appellant’s application for constitutional writ relief against the decision of the Refugee Review Tribunal given on 27 June 2013 to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa: SZTDT v Minister for Immigration [2015] FCCA 1666.

The issues

2    In the proceedings before his Honour the appellant was represented by counsel, however, he has appeared today to represent himself. The grounds of appeal assert that his Honour erred in failing to accept the two grounds for judicial review advanced in the Court below. Those were, in essence, that his Honour should have found that the Tribunal, first, had failed to consider the full integers of the appellant’s claims for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) and complete the exercise of that jurisdiction and, secondly, had applied the wrong test under s 36(2)(aa).

Background

3    The appellant is an ethnic Tamil from the Eastern Province of Sri Lanka. He is also a Hindu who had departed that country illegally. The appellant had claimed that he was entitled to protection on a number of bases. The Tribunal accepted, by giving him the benefit of the doubt that, in 2005, the appellant had been detained by the Liberation Tigers of Tamil Eelam, or LTTE, for recruitment, but that he had escaped that detention after a short period.

4    The Tribunal also accepted that the Sri Lankan Army had conducted roundups and arrests in the Eastern Province during the Sri Lankan civil war and that, in 2005, after his escape from the LTTE, the appellant had been detained for two weeks. However, the Tribunal was not prepared to accept that subsequently to the conclusion of the war, the appellant had suffered, or was at risk of suffering, any further harm from the LTTE, the government, or groups associated with either the LTTE or the government.

5    The Tribunal was not satisfied that the appellant was a credible witness about his claims that he had suffered any further adverse experiences or consequences after his release by the army from the two week detention in 2005. Indeed, it found that the army had released him at that time and that fact “strongly suggests that he was not believed to have any connection with the LTTE”.

6    The Tribunal found that, the appellant had been able to travel to Abu Dhabi on a genuine passport in his own name twice and that his passport had been renewed in 2009 while he was in Abu Dhabi. The Tribunal said this meant that the appellant could not have been of adverse interest to the Sri Lankan authorities, because of any actual or imputed behaviour or belief, as he had claimed.

7    The Tribunal also was not satisfied of the appellant’s claim, when he returned to his village for two months in 2008, to have been of adverse interest to the Karuna or Pillayan paramilitary groups. Those groups had originally been aligned to the LTTE, but had switched sides to align themselves with the then government. The Tribunal found that because he lived in a small village, the army would have been well aware that he was there and, had he been of adverse interest, the army would have detained and harmed him, but that, as the appellant had said, no such events occurred.

8    The Tribunal found that because he had performed no service at all for the LTTE during his very brief detention in 2005 and had escaped from them, there was no basis to conclude that he had ever been denounced to the authorities or to paramilitary organisations by any former LTTE members or informants. The Tribunal was not satisfied that the appellant’s assertions that either paramilitary group had searched for him after he returned from Abu Dhabi in 2011 or had come to his sister’s house on three occasions in a white van, as he had claimed. It found that, had the appellant been of any interest to either of those groups or others, they would not have stopped simply at attending at his sister’s house and doing nothing else to seek him out, after being told that he was not there. It was not satisfied there was any reason to believe that the appellant was currently wanted or sought by the authorities or any paramilitary groups in Sri Lanka.

9    For the same reasons, the Tribunal rejected the appellant’s claim to have had an imputed pro-LTTE political opinion or that he faced a real risk of persecution by reason of his Tamil race or ethnicity. It made those findings based on the then latest country information as to the situation in Sri Lanka in the years following the conclusion of the civil war in 2009. It was not satisfied that Sri Lankans who were ethnically Tamil then faced serious harm simply because of their ethnicity or that factors, such as their geographic origins in the Eastern Province, put them at any real risk of such harm. In particular, it found that the appellant himself did not face a real chance of serious harm on return to Sri Lanka because of his ethnicity, or any other matter connected to his personal circumstances or geographic origins.

10    The Tribunal also found that, although the appellant was a member of the particular social group of Tamils who had fled Sri Lanka illegally and made unsuccessful claims for asylum in Australia, his membership of that social group did not give rise to a real chance that he would suffer imprisonment or be subjected to penalties, other than a fine, after he returned. It accepted the then current country information that indicated that were he returned to Sri Lanka, he would be detained at the airport under a law of general application, because he had departed Sri Lanka illegally, for a short period until he could be brought as quickly as possible before a court to be granted bail on his own recognisance or with a family member providing surety.

11    The Tribunal then made an overall finding in relation to the appellant’s claims to fear persecution under the Refugees Convention and s 36(2)(a). It was not satisfied that, having considered those claims individually and cumulatively, there was a real chance that on return to Sri Lanka the appellant would suffer serious harm amounting to persecution for any Convention reason including, but not limited to, those which he had claimed.

12    It then turned briefly to deal with his claims to complementary protection saying at [40]-[41]:

40.    As noted, I am not satisfied as to the credibility of the Applicant’s claims that he would suffer serious harm on return to Sri Lanka for the reasons he has claimed. While I accept he would likely face arrest on charges of illegal departure, that he could well be placed in remand for a relatively brief period while awaiting a bail hearing, and that he would later be fined if found guilty I am not satisfied that this treatment could reasonably be seen as amounting either to serious harm in a Convention sense or significant harm in terms of Australia’s complementary protection arrangements. Nor am I satisfied that he would be exposed to significant harm for any other reason.

41.    Having considered these circumstances I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm in terms of s.36(2)(aa) of the Act. (emphasis added)

13    The appellant had been represented by solicitor migration agents before the Tribunal and it addressed their arguments put on his behalf in the course of its reasons that I have briefly summarised above.

The trial judge’s reasons

14    After the trial judge reserved judgment, North J decided WZAPN v Minister for Immigration and Border Protection (2014) 229 FCR 477 at 485 [30], where he held that a person could suffer serious harm amounting to persecution within the meaning of s 91R(1)(b) of the Act by a threat to his or her life or liberty without reference to the severity of the consequences of that threat to the person’s life or liberty. That finding, if correct, would be binding on the Federal Circuit Court. It could be applied to the analogous situation of illegal departees returning to Sri Lanka who could then be said to face serious or significant harm for the purposes of ss 91R(1)(b) or 36(2)(aa). That was because, based on North J’s reasoning, they would be detained on arrival in Negombo prison on remand, for even a short period, in poor prison conditions while waiting to be brought before a magistrate as soon as practicable for a bail hearing. His Honour’s decision was overturned by the High Court two days before the trial judge delivered his reasons: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610. Earlier, the Full Court, whose decision was approved by the High Court, had also determined that North J had erred in his conclusion: SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497.

15    His Honour rejected both of the grounds of review. The trial judge noted that the appellant’s counsel had argued before him that there were three compound integers in the harm that the appellant would face, were he to return to Sri Lanka, namely, harm, first, from the government and paramilitary groups, secondly, in Sri Lanka generally, and, thirdly, “for reasons that may be unknown to” the appellant.

16    His Honour followed what Robertson J had said in SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 774 at [56]-[57] namely, that the Tribunal would not commit a jurisdictional error merely because, when it came to deal with complementary protection claims, it referred back to its previous findings of fact in relation to claims to protection under the Refugees Convention, although each case would depend on its own facts. He found that the Tribunal did not commit a jurisdictional error by adopting such a method of reasoning.

17    The trial judge also rejected the appellant’s contention that the Tribunal had failed to consider that he might be harmed on his return to Sri Lanka generally, as opposed to what might happen to him at the airport. The trial judge found that, having regard to the decision record, that contention was unsustainable because the Tribunal, in fact, had given detailed consideration as to the harm that the appellant might face, both at the airport and more generally. His Honour also rejected the third aspect of the integers that the appellant had relied on, namely, a supposed failure of the Tribunal to consider harm for reasons that were unknown to the appellant. He found that such a contention did not fall within the issues for review by the Tribunal that it was required to consider. He held that the Tribunal’s function was to consider whether there were substantial grounds for believing that, by reason of the appellant’s removal to Sri Lanka, there was a real risk that he would suffer serious or significant harm.

18    The trial judge also rejected the second ground of review. He found that, in its reasons at [40] and [41], the Tribunal had applied the correct test for complementary protection under s 36(2)(aa) and that it was not satisfied that the appellant would be exposed to a real risk of significant harm for any of the reasons that he gave, as it explicitly found in [40], set out above. His Honour held that the Tribunal’s reasons at [41] indicated that it had appreciated the correct statutory test. I note that substantively it had also set that test out earlier in its reasons at [5] and [7].

The appellant’s submissions

19    The appellant argued before me that he had been unable to provide anything other than his own oral evidence to support his claims, but that he did, in fact, have a genuine fear of suffering significant harm were he to be returned to Sri Lanka and that there were substantial grounds for believing, that as, a necessary and reasonably foreseeable consequence of that occurring, there was a real risk that he would suffer significant harm. He claimed that the Tribunal had erred in failing to believe his claims and accept his oral evidence. He contended that the country information, on which the Tribunal had relied, was not reliable. His written submissions repeated the arguments that his counsel had put to the trial judge.

Consideration

20    In my opinion, the first ground of appeal must fail. The Tribunal expressly found at [40] that it was not satisfied that the appellant would suffer serious harm, that is, for a Convention reason, on return to Sri Lanka for any of the reasons that he had claimed. That was, in substance, a reference back to all of the reasons that the Tribunal had given for rejecting the appellant’s claims to protection under the Refugees Convention, including, for any other reason than those that he had advanced to the Tribunal. Next, at [40] of its reasons, the Tribunal considered an additional factor relevant to the claim to complementary protection, being the circumstances that, on his return, the appellant would be arrested and detained as a person who had allegedly departed Sri Lanka until he could be brought before a court, after a relatively brief period of remand, for a bail hearing. The Tribunal found that the only additional harm that the appellant might suffer in those circumstances was that he would be fined if found guilty. But it was not satisfied that such treatment, of arrest, detention and or fine could reasonably be said to amount to either serious harm, in a Convention sense, or significant harm within the meaning of s 36(2)(aa) and (2A) of the Act.

21    The Tribunal’s obligation, standing in the shoes of the Minister, was to determine whether it was satisfied that the appellant had met the statutory criteria that enlivened Australia’s protection obligations under s 36(2)(a) or (aa). That would only occur in relation to the complementary protection obligations if the Tribunal were satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.

22    In my opinion, the Tribunal’s findings, in [40] and [41] of its reasons, demonstrated that it had addressed this very question, namely, whether it was satisfied that Australia had those protection obligations. It was not satisfied that the appellant’s account of what had happened to him in Sri Lanka was credible for the purposes of his claims to protection under s 36(2)(a). Based on those findings, together with its rejection of his claim that the brief period of detention or remand and the fine that he would be exposed to, were he found guilty of being an illegal returning departee, would give rise to complementary protection obligations, it was not satisfied that there were substantial grounds for believing that he would suffer significant harm were he returned to Sri Lanka.

23    I can see no error in the way the trial judge dealt with the arguments put to him by counsel, then representing the appellant, that he repeated in his written submissions on appeal. Moreover, I agree with what Robertson J said in SZSGA [2013] FCA 774 at [56]-[57]. For these reasons, ground one must fail.

24    The appellant’s argument on the second ground, namely that the Tribunal had failed to apply the real chance test to his claims for complementary protection in accordance with the decision of the Full Court in Minister for Immigration and Citizenship v SZQRB (2010) 210 FCR 505 is equally unsustainable. The Tribunal applied that very test in dealing with all of the appellant’s claims and any other reason that might be open to it on the material it had to consider, in relation to his claims to a protection visa, under s 36(2)(a) and (aa). The Tribunal’s reasoning was replete with references to, and application of, the real chance test in explaining why it rejected the appellant’s claims to be a refugee to whom Australia owed protection obligations. In substance, it found that, there was no real chance that on return to Sri Lanka he would suffer serious harm amounting to persecution for any Convention reason. The additional factors that the Tribunal considered relating to what would happen to the appellant on his return as an illegal departee, did not satisfy it that there was a real chance that the treatment could reasonably be seen as amounting, relevantly, to significant harm in terms of Australia’s complementary protection obligations.

25    Indeed, having regard to the subsequent decision in WZAPN 254 CLR 610, that conclusion was open to the Tribunal. For these reasons, as well as those that the trial judge gave, I am of opinion that ground two must be dismissed.

Conclusion

26    The appeal must be dismissed with costs.

Associate:

Dated:    2 June 2016