FEDERAL COURT OF AUSTRALIA

SZUAW v Minister for Immigration and Border Protection [2016] FCA 767

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed

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

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 to grant the appellant Constitutional writ relief in respect of the decision of the Refugee Review Tribunal given on 17 February 2014 to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa: SZUAW v Minister for Immigration [2016] FCCA 264.

Background

2    The appellant is an ethnic Tamil from Sri Lanka who arrived in Australia on 20 July 2012 as an unauthorised maritime arrival. He applied for a protection visa on 17 December 2012. The Minister’s delegate refused to grant that visa on 6 September 2013 and then the appellant applied to the Tribunal for a review of that decision. In the proceedings before the Tribunal, the appellant was assisted by a solicitor migration agent who made submissions on his behalf in writing and attended the Tribunal’s hearing by telephone.

3    The appellant claimed that he had been born in 1977 and had spent all his life in the village in Sri Lanka where he grew up, other than four years between 2003 and 2007 which he spent living and working in Qatar as an electrical technician in a mining company. He claimed that he married in 2009, had had two children and that his parents, two sisters and a brother continued to live in his village, while a second brother lived and worked in Colombo and a third brother, whom the appellant claimed had joined the Liberation Tigers of Tamil Eelam, or LTTE, in 1987 (the LTTE brother), was missing. The appellant claimed that he had never been a member of any political party in Sri Lanka.

4    In the statement of his claims that he submitted when seeking his protection visa, the appellant identified a number of incidents that he said had occurred between him and Sri Lankan government authorities, namely, he claimed that:

    in 1990, he was detained at a checkpoint, returning from a football game, for two hours by the army and questioned about his LTTE brother;

    in 1999, he had been arrested because a policeman had been shot near where he worked and the police held his LTTE brother as responsible. He claimed that after several days he had been cleared of any suspicion, but was required to advise the authorities if his LTTE brother contacted them;

    in 2000, he was detained for a day after his LTTE brother was suspected of shooting a Criminal Investigations Division (CID) officer in a village near their home, during which time he was insulted and threatened, but later released;

    in April 2012, while he and his family were visiting his wife’s parents, 22 kilometres from his home, five CID officers arrived at his parents’ house inquiring about him and requesting that he report to them upon his return. He claimed that he did not do so as he feared he might “arbitrarily go missing”, like others taken for questioning by the CID. He claimed that he did not return home for two days until he had to go to work; and

    in the first week of May 2012, five CID men went to his parents’ home looking for him while he was at work and asked that he report to them upon his return. Again, he claimed that he had not done so, but moved his family to a house about one and a half kilometres away, although he spent most of his time at his wife’s parents’ home.

5    The appellant also claimed in his protection visa application that, when he returned from Qatar, he obtained a replacement identity card for the one he had lost earlier. He claimed that, in 2012, he had planned to go to Singapore, however, the “agent” whom he used had kept his passport and disappeared but that a friend had advised him of a boat leaving for Australia. He claimed that his mother and wife were afraid that he would be arrested, tortured and killed, and he eventually agreed that he was at risk and should leave Sri Lanka to save his life. He claimed that he had been frequently stopped by the police doing checks when he was on his way home from work and always feared that the CID might be amongst them or the CID might have contacted the police about him. He claimed that he could not continue to live with such a fear. He claimed that he could not relocate within Sri Lanka because he would be required to register with the police, and eventually would be identified to the CID. He claimed that his brothers had avoided suspicion because they lived in Colombo, but he could not live with them because of the suspicion about his own past association with his LTTE brother.

6    The appellant did not make any claim to the delegate that he had ever had any contact with the LTTE, even during the civil war. He said that his brother had joined the LTTE in 1987, was a major in its military division and that he last saw his LTTE brother around 1990 when he, the appellant, was 13 years old.

7    On 6 September 2013, the delegate decided not to grant the appellant a protection visa because she was not satisfied that the appellant faced a real chance of serious or significant harm were he to return to Sri Lanka.

The proceedings in the Tribunal

8    In his evidence to the Tribunal the appellant claimed that he had organised a passport through an agent, was planning to go to Singapore to work, and that two weeks after he applied for it, in his own name, a genuine passport was issued that he collected on 23 May 2012 from the passport office himself, although he said that the agent had directed him to a specific counter. He claimed that because the agency delayed in returning his passport he thought it was too risky to wait and left Sri Lanka by boat on 6 July 2012. In the meantime, he claimed that he visited Jaffna in June 2012 staying at different houses so he did not need to register.

9    In response to the Tribunal’s questions as to why the Sri Lankan Army suddenly became interested in him in April and May 2012, he claimed that during the war they had been “busy with the war” and had not searched for people, but now the war had finished they had put supporters of the LTTE in detention centres and that they suspected him of being in contact with, and of hiding, his LTTE brother. He claimed that if he were returned to Sri Lanka now, the security authorities had told his family that, if they caught him, they would set fire to him. He claimed that at the end of July 2012, after he had left Sri Lanka, the army and CID had inquired with his mother about him. He claimed that his mother had told them that he had gone to work for the same photo studio where he had worked in 1999 and that, when the authorities went there, they found CDs containing pictures of LTTE people and events. He claimed that after the photo studio owner was arrested and beaten, the owner had told the authorities that the appellant was involved in that business. He claimed that he had not raised these matters with the Department at Christmas Island because his friends had told him to make no reference to the LTTE as it might mean trouble for him, but that the reason he had raised it when he did was that it was his last opportunity to do so. He said his wife and children were living with his parents.

10    The Tribunal considered all of the appellant’s evidence together and found that he had not been truthful about his experiences in, or his reasons for leaving, Sri Lanka. It identified his central claim as being that, while he himself had not been involved with the LTTE at any stage, his brother was a major in the LTTE and, because of that family link, since April 2012, the Sri Lankan authorities had targeted and threatened to harm him so that there was a real chance that he would suffer serious harm or be killed by them should he return to Sri Lanka in the near future.

11    The Tribunal confirmed with the appellant and his solicitor migration agent that he claimed to fear persecution on the Refugees Convention grounds of imputed political opinion, his ethnicity, his membership of the particular social group of Tamils from the east, persons who had illegally departed Sri Lanka and persons who were failed asylum seekers.

12    The Tribunal noted that there was no material in support of the appellant’s claims before it other than his oral and written evidence. It rejected, as implausible, the appellant’s evidence that in mid 2012 the authorities had suddenly renewed their interest in his LTTE brother who, on the appellant’s account, had been dead or missing since around 1995. It also found implausible that if the Sri Lankan authorities were seriously trying to track down an LTTE combatant, such as the LTTE brother, they would differentiate among his family members on the basis of their marital status or residential location. Accordingly, the Tribunal rejected the appellant’s assertions that only he had been targeted but not his brothers who lived in Colombo, or other family members. It also found implausible that if the Sri Lankan security authorities:

… with their reputation for ruthlessness were seriously pursuing him since April 2012, they would not have made the effort to track him down at his wife’s parents’ house 22 kilometres away, at his work or at his rented house, a mere 1.5 kilometres away from his parents’ house, rather than just requesting that he report to them as claimed.

13    The Tribunal considered that its doubts were strengthened by the fact that, in spite of his failure to report to authorities, the appellant was able to remain in Sri Lanka for another two months until early July 2012, to travel without consequence to Colombo to collect in person a newly issued genuine passport, even if he did so at a specified counter, and to travel to Jaffna, which was an area of heightened military presence at that time. It found that even if it were to believe that account, which it did not, the account itself only suggested that the authorities did not regard the appellant as a serious target. The Tribunal also found that the appellant had not raised any suggestion, at his entry interview, that the authorities were looking for him and had demanded that he report to them or suggested that he still had links to his LTTE brother, as he subsequently claimed. Rather, it found that he had told the interviewing officer that the reason he left Sri Lanka was that army intelligence officers had come to his mother’s house in the first week of May 2012 and questioned her as to whether the LTTE brother was still alive and whether she had had contact with that brother.

14    The Tribunal also drew on other inconsistencies and what it regarded as progressive embellishments of the appellant’s claims during the course of his progress through the entry interview, the proceedings before the delegate, and then the Tribunal, to conclude that his evidence and claims about his experiences in Sri Lanka and reasons for leaving there were untruthful. As a result, the Tribunal was not satisfied that the appellant was of interest to the Sri Lankan authorities at the time that he departed Sri Lanka. It was not satisfied that his profile in Sri Lanka, before coming to Australia, gave rise to a real chance of serious harm for any Convention reason in the reasonably foreseeable future or that he would face a real risk of significant harm upon removal to Sri Lanka, for the purposes of ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth).

15    The Tribunal was not satisfied that, if the appellant returned to Sri Lanka, he would be arrested, tortured or killed by the Sri Lankan security services or arbitrarily go missing. It found that he had fabricated his claims in order to achieve a migration outcome. The Tribunal found, based on country information, that the appellant was not at risk of serious harm or significant harm merely because he was a Tamil from an area that had been previously controlled by the LTTE, such as the Eastern Province or his home village. It found that, even on the appellant’s own account of his interactions with the security services over the years, he had been cleared of suspicion and released promptly on each occasion and had been able to depart legally for Qatar in 2003 without incident, return in 2007, obtain a replacement identity card, and then live and work in his town without impediment from the authorities. The Tribunal concluded that the appellant’s own evidence, regarding his claimed circumstances in Sri Lanka, did not support his claims to face future harm in connection with his Tamil ethnicity.

16    It rejected his claim of having an imputed political opinion of being linked to the LTTE, based on its findings to which I have referred. The Tribunal also rejected the appellant’s claim that, as a failed asylum seeker, he would be at risk of serious or significant harm were he returned to Sri Lanka. The Tribunal relied on country information, including the advice of the Department of Foreign Affairs and Trade (DFAT), to conclude that it was not satisfied that being a returned Tamil failed asylum seeker would impute the appellant with a political opinion linked to the LTTE or give rise to his being treated differentially in a way that would amount to serious or significant harm, were he to return to Sri Lanka. It found that because he was not of interest to the authorities at the time of his departure, it was not satisfied that he would be imputed with an adverse profile were he to be returned as a failed asylum seeker. The Tribunal found that the appellant’s illegal departure from Sri Lanka was opportunistic, rather than an attempt to evade the Sri Lankan authorities, based on his own account which included obtaining a genuine passport from Sri Lankan authorities, and that reinforced its view that the authorities had no prior interest in the appellant and were unlikely to draw any broader adverse inferences from his unlawful departure.

17    It found that he had committed an offence under Sri Lanka’s Immigrants and Emigrants Act that prohibited departure other than via an official port of entry or exit and without a passport. However, based on country information, the Tribunal found that he would only be subjected to a standardised procedure that the Sri Lankan authorities applied to illegal departees where he would be questioned, detained, processed and then presented to a Court for bail hearing at the earliest opportunity. It found that if a returnee arrived on a weekend or public holiday, he or she would be held at Negombo prison’s remand section, perhaps for a few days, until a bail hearing could be conducted. It also found that conditions in that prison were reportedly overcrowded and unsanitary, but that no reports indicated that the authorities or others tortured or otherwise targeted returnees for mistreatment. It found, based on country information, that the magistrates court would impose fines on the appellant and that, at most, he could be held for a few days, pending a bail hearing, in the poor conditions in Negombo prison, but that that would not involve serious or significant harm. It found that there was no real chance of him suffering any such harm during any period while he was held on remand. It found that the Sri Lankan laws regarding unlawful departure were enforced without discrimination for any Convention or other reason, but were applied to all Sri Lankan citizens regardless of their background.

18    It found that the anticipated detention and remand in the Sri Lankan prison, pending his being brought as soon as possible before the court, would not amount to significant harm for the purposes of 36(2A) of the Act and that there was no real risk of him being imprisoned. It found that it was not satisfied that any interrogation, brief detention, possible conviction and monetary fine that the appellant might face on return, individually or cumulatively, would amount to significant harm for the purposes of ss 36(2)(aa) and 36(2)A.

19    The Tribunal concluded that it was not satisfied that the appellant faced a well-founded fear of persecution for any Convention reason in Sri Lanka now or in the reasonably foreseeable future for the purposes of s 36(2)(a) of the Act and that, having considered its findings on those grounds, it was also not satisfied that the appellant faced a real risk of significant harm for the purposes of s 36(2)(aa) so as to attract any complementary protection obligations of Australia. Accordingly, it affirmed the delegate’s decision.

The proceedings before the trial judge

20    On 18 March 2014, the appellant filed in the Federal Circuit Court an application for review of the Tribunal’s decision that he prepared himself. His original grounds were that he had read the Tribunal’s decision but did not agree with its reasoning and asserted that its decision was not fair nor in accordance with natural justice. He stated that he would file grounds after he had sought advice from a lawyer. On 30 May 2014, the appellant filed an amended application prepared by solicitors who acted for him until shortly before the hearing in the Federal Circuit Court.

21    At the hearing on 4 February 2016, the appellant gave evidence before the trial judge about the following assertions that he had made earlier in his oral submissions to his Honour. First, he said that he had told the Tribunal that:

    he had travelled to Qatar with the assistance of people smugglers, but the Tribunal had not recorded or considered that matter;

    on one occasion when the CID had called his parents’ home, they had pushed his mother and broken her leg, yet the Tribunal had not noted that claim or taken it into consideration.

22    Secondly, he told his Honour that he had CDs (which his Honour inferred were recordings of the proceedings before the Tribunal) but had not brought them to Court.

23    His Honour did not believe that evidence but treated those new assertions as additional grounds on which the appellant relied to seek judicial review. His Honour found that neither his solicitor migration agent during the course of the proceedings before the Tribunal, nor the solicitor who acted for the appellant in drafting the amended application below, had raised those assertions. His Honour noted that the Tribunal had stated at [17] of its decision record that the appellant had confirmed to it that he had departed legally for Qatar in 2003 without incident and had no problems with the authorities after he returned. The trial judge found implausible the appellant’s evidence that he had used a people smuggler to depart for Qatar and rejected that allegation. His Honour also rejected the allegation involving the alleged injury to the appellant’s mother. He noted that the solicitor migration agent, who was present by telephone during the hearing before the Tribunal, had not raised that as a ground on which the Tribunal should have acted.

24    His Honour also considered the one ground particularised by the appellant’s solicitor in the amended application, that itself had three particulars to support its assertion that the Tribunal had failed to deal with the full integers of the appellant’s claims. The first particular was that, at [69] of its decision record, the Tribunal, in dealing with the appellant’s claims to complementary protection, had referred to “unspecified findings of fact above”. However, it did refer to its earlier findings and was entitled to do so. His Honour noted that those findings were relevant, had been set out earlier in the decision record and that the Tribunal was entitled to rely on them in dealing with the complementary protection ground. I agree with his Honour’s reasons for rejecting the first particular.

25    Moreover, as Robertson J said in SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship (2013) FCA 774 at [56]-[57], 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 under the Refugees Convention, although each case would depend on its own facts. I followed his Honour’s decision in SZTDT v Minister for Immigration and Border Protection [2016] FCA 631.

26    The second particular was that the Tribunal had only dealt at [51] of its decision record with the appellant’s claims of authorities targeting him on the basis of his brother’s involvement with the LTTE, rather than considering whether the harm he claimed could arise for other reasons. The trial judge found that [51] of the Tribunal’s decision record focused on the appellant’s claimed links with the LTTE through his LTTE brother. He found that the Tribunal had dealt earlier in its decision record with all the claims that the appellant had made and not just those as to whether he might face harm because of his LTTE brother’s alleged involvement with that organisation. I agree with his Honour’s reasons. As is clear from my recitation of the Tribunal’s reasons above, the Tribunal dealt comprehensively with all the appellant’s claims and rejected them as untruthful. It was open to the Tribunal to do so.

27    The final particular in the amended application was that the test under s 36(2)(aa) did not require an applicant to demonstrate a Refugees Convention related nexus for the harm feared. His Honour found that that proposition was correct. However, he also held that the Tribunal had not applied Convention related tests in considering the appellant’s complementary protection claims. He found that the third ground did not demonstrate a basis on which the Tribunal’s decision could be set aside. I agree. The Tribunal applied the correct test in dealing with the complementary protection claims and no jurisdictional error is apparent from its decision record.

28    His Honour also considered another ground of appeal that the appellant had advanced orally that effectively sought to challenge the merits of the Tribunal’s decision. He held that this was not an appropriate basis for seeking judicial review. I agree.

This appeal

29    Before me, the appellant applied for an adjournment. He said that he had been injured in an accident on 26 March 2016 and that he had not been able to obtain a transcript of the Tribunal hearing that he could put before the Court to substantiate the case he wished to make. He said that he wanted to discuss these matters with a lawyer. He said that he was still being treated for his injuries, had to attend a clinic regularly, go to his GP and to physiotherapy treatments and that someone had to take him to each of those appointments, as a result of which he asserted that he had not been able to obtain a transcript. The appellant said that he was not satisfied with the Tribunal’s decision. He said that his Honour had been wrong not to permit him to rely on a document that he had found on the internet and for which he had provided a certified translation that he had annexed to a written submission filed in the Court below on 14 January 2016.

30    In essence, that document appeared to be a statement in Tamil from a website that gave details of a major, with his LTTE brother’s name, having been killed in September 1991 fighting against the Sri Lankan forces. The appellant had given evidence to his Honour, during the hearing, that he did not have that document at the time of the Tribunal hearing. His Honour refused to admit the document into evidence because, correctly, he found that it was not relevant to the judicial review application to demonstrate that the Tribunal made a jurisdictional error.

31    The appellant also told me that he had a valid reason for being entitled to obtain a protection visa and that the Tribunal had been wrong to reject his claim to one. He said that anyone could be bribed in Sri Lanka, that they would do anything the briber wished them to do and that the Tribunal should have understood that.

32    I was not prepared to grant an adjournment. The appellant had known since the hearing and decision of the trial judge on 4 February 2016 that a transcript of the Tribunal hearing would have assisted him. He did nothing to obtain such a transcript and gave no explanation for his failure to do so in the period between the hearing below and the day of his accident over six weeks later. Moreover, I am not satisfied that the appellant has given any satisfactory explanation of his failure today to have a transcript of the Tribunal hearing. An adjournment would not be appropriate. The appeal had been fixed for hearing today for a substantial period of time.

33    Whether or not bribery is effective in Sri Lanka was a matter that, if the appellant had wished to rely on it, he should have given evidence about before the Tribunal or claimed earlier. The other grounds on which the appellant argued that his appeal should be allowed were merely matters that cavilled with the Tribunal’s reasoning process in a way that sought merits review or involved the assertion of matters that had nothing to do with demonstrating that the Tribunal made a jurisdictional error.

Conclusion

34    In all of the circumstances, I am of opinion that the appeal is without merit and must be dismissed with costs.

Associate:

Dated:    1 July 2016