FEDERAL COURT OF AUSTRALIA

SZVUV v Minister for Immigration and Border Protection [2016] FCA 1325

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant to pay the first respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    The appellant, a male citizen of Sri Lanka of Tamil ethnicity, appeals from a decision of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the former Refugee Review Tribunal refusing to grant a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth).

2    The appellant arrived in Australia at Christmas Island and later applied to the former Department of Immigration and Citizenship for a protection visa on 6 November 2012.

3    The appellant sought a protection visa primarily on the basis of his father’s actual or perceived involvement with the Liberation Tigers of Tamil Eelam (LTTE). The appellant claimed that while growing up in Udappu in Sri Lanka’s west, his father would commute north for weeks at a time in order to fish using an LTTE fishing permit. He said that his father was detained and beaten by the Sri Lankan army on two occasions in 2012, and had been targeted by the Sri Lankan army since that time. The appellant claimed this was because his father was accused of being involved with the LTTE.

4    The appellant also claimed that he was required to perform random, unpaid work for the Sri Lankan army during his time in high school. He further claimed that, upon graduating and commencing work in the fishing/prawn industry, he had to pass through a Sri Lankan navy/army controlled camp on his way to work and present identity documents when doing so.

5    The appellant further claimed that he went to Colombo in 2012 to join his father who was there hiding from the authorities. He said that he attempted in March 2012 to get a visa for Qatar but was ripped off by his travel agent, and so decided to travel to Australia instead. In May 2012, after obtaining his passport, the appellant said he returned briefly to Udappu to see his mother for his birthday.

6    Finally, the appellant claimed to fear persecution if returned to Sri Lanka on the basis that he would be a failed asylum seeker.

7    On 2 August 2013, a delegate of the Minister for Immigration and Citizenship refused the appellant’s application for a protection visa.

8    On 7 August 2013, the appellant applied to the Tribunal for merits review of the delegate’s decision. The Tribunal affirmed the delegate’s decision to refuse the appellant’s application for a protection visa on 1 December 2014.

9    The appellant then applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. Having found the Tribunal’s decision was not affected by jurisdictional error, the primary judge dismissed the appellant’s application for judicial review on 16 June 2016. See SZVUV v Minister for Immigration & Anor [2016] FCCA 1592.

10    On 28 June 2016, the appellant filed a notice of appeal from the Federal Circuit Court’s decision alleging the primary judge erred in failing to find the Tribunal “erred in law”.

delegate’s decision

11    The delegate accepted a number of the appellant’s claims: his claims regarding his work for the army while in high school; him having to pass through Sri Lankan navy controlled camps; his father working as a commercial fisherman in the north; and his father being detained by the Sri Lankan army in 2012. The delegate did not, however, accept his claims that the army made repeat visits to the appellant’s family home following his father’s first interrogation; that the appellant’s father had fled the authorities; or that he was of any ongoing interest or suspicion to the authorities.

12    The delegate therefore found that the Convention grounds of race, imputed political opinion and membership of a particular social group were the essential and significant reasons for the harm feared as required by s 91R(1)(a) of the Act.

13    The delegate further found that the harm feared, being detention, interrogation with violence or being killed, amounted to serious harm and systematic and discriminatory conduct as required by s 91R(1)(b) and (c). Accordingly, the delegate was satisfied that the harm feared amounted to persecution.

14    The delegate was not, however, satisfied that the appellant had a real chance of being persecuted for one or more of these reasons, and therefore found that the appellant’s fear of persecution was not well-founded. Accordingly, the delegate was not satisfied that Australia owed protection obligations to the appellant, and so the appellant did not meet the criteria for a protection visa under s 36(2)(a) of the Act.

15    For the same reasons, the delegate was not satisfied there was a real risk that the appellant would be subject to significant harm if returned to Sri Lanka. The delegate was therefore also not satisfied that Australia owed protection obligations to the appellant under s 36(2)(aa), and so the appellant did not satisfy the criteria for a protection visa under that section.

16    By application for review dated 7 August 2013, the appellant sought merits review in the Tribunal of the delegate’s decision.

tribunal’s decision

17    The appellant was represented by his registered migration agent and assisted by a Tamil interpreter at a Tribunal hearing on 13 November 2014. At the hearing, the Tribunal received photographs provided by the appellant of the Udappu army camp, and gave the appellant an opportunity to respond to the Tribunal’s questions, including those directed to country information and facts that the Tribunal apparently considered adverse to the appellant.

18    In its decision, the Tribunal did not accept the appellant’s story about his father as credible. It found that, on the evidence before it, Udappu was never under LTTE control, and while it accepted that the appellant’s father worked as a fisherman in the north for three or four years, he was not there when the area was under LTTE control, and so would not have required an LTTE permit. As such, the Tribunal held that no such permit, or any other item linking him to the LTTE, was ever issued to the appellant’s father.

19    Accordingly, the Tribunal did not accept any accounts of the appellant’s father being detained or harmed by the authorities as truthful or that the appellant’s father was in any way “in hiding”. While it accepted that the appellant stayed a while in Colombo during 2012 and commuted back to Udappu, the Tribunal gave some weight to the fact that he was preparing to leave Sri Lanka legally, under the eye of the authorities, until he was ripped off by the agent handling his visa for Qatar – behaviour the Tribunal considered to be inconsistent with that of a person trying to evade the attention of the authorities.

20    For the same reasons, the Tribunal also did not accept the appellant’s claim that the authorities were interested in him because they thought he might be able to tell them where his father was.

21    With regard to the appellant’s claims regarding performing errands and tasks for soldiers when he was a child, the Tribunal did not accept that this was indicative of a real chance of serious harm. In this regard, the Tribunal considered the appellant had not experienced degrading treatment or punishment through the denial of social and economic rights because he was able to go to school, be employed, live with his family in a stable household, and enjoy domestic mobility.

22    The Tribunal was also not satisfied that the appellant faced a real chance of serious harm in Sri Lanka by reason of membership of particular social groups, including “Tamils”, “Tamil males” or “adult or young adult Tamil males”, noting that the appellant had been able to work and had domestic mobility. It considered the appellant’s claims of having to work for the army were not indicative of a real chance of serious harm.

23    In reliance on a country information report prepared by the Department of Foreign Affairs and Trade (DFAT), the Tribunal found that the appellant was likely to be questioned by police on his return to Sri Lanka and possibly charged with breach of Sri Lankan departure laws. While the Tribunal accepted the appellant could remain in police custody on remand for up to three days, it considered the appellant would likely be granted bail within 24 hours and ultimately receive a fine. In the circumstances, the Tribunal found the process of prosecuting Sri Lankans who previously departed illegally was implemented under laws of general application, and would not be enforced in a discriminatory manner. It considered the appellant’s submission that detainees generally face bribes and other extrajudicial harm, but said the evidence in this regard was vague and speculative, and gave weight to the brief period of detention. Finally, the Tribunal rejected the appellant’s submission that the means of penalising all Sri Lankans perceived as illegal emigrants was not appropriate or proportionate to the nature of the offence concerned in circumstances where the evidence suggested the offence led to a fine.

24    Finally, the Tribunal held the appellant did not match any of the “risk profiles” identified in country information from the United Nations, and so was not satisfied that there was a real chance of the appellant facing a real chance of persecution in Sri Lanka due to the general human rights situation there or the reputed behaviour of the security services.

25    In the result, looking at the evidence separately and cumulatively, the Tribunal was not satisfied that the appellant faced a real chance of persecution in Sri Lanka for a Convention related reason.

26    Consequently, the Tribunal was not satisfied that Australia had protection obligations in respect of the appellant, and therefore held that he did not satisfy the criterion in s 36(2)(a).

27    Looking at the claims as a whole, the Tribunal was also not satisfied 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. Accordingly, it was not satisfied that Australia owed the appellant protection obligations under s 36(2)(aa).

28    Thus, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

29    The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court.

Judicial review in the federal circuit court

30    In his application for judicial review filed 11 December 2014, the appellant stated the following grounds of review:

Craddock Murray Neumann Lawyers who have assisted me with my Protection Visa Application and Review of my Protection Visa Application say that they could not assist me with my court application unless I pay their legal fees. I do not have much savings to meet the costs of my legal fees.

I have read my RRT decision and found a number of errors made by the RRT. I do not agree with the RRT decision as it has acted beyond its jurisdiction and it declined its jurisdiction. I lodge this application myself. I will wait until a lawyer is given by this court and I will meet the lawyer with the errors that I have found. After meeting the lawyer, I will notify this court what legal errors have been made by the RRT in my review.

31    At a directions hearing on 4 March 2015, in response to a request by the appellant for legal representation, the primary judge advised the appellant that the Federal Circuit Court would not appoint a lawyer as there was no general right to legal representation. Although it was made clear to the appellant that it was his responsibility to obtain legal advice, he did not thereafter provide the Federal Circuit Court with any written submissions.

32    On the original hearing date in that Court of 7 June 2016, the primary judge granted an adjournment of just over a week in order to afford the appellant an opportunity to obtain legal advice that he then claimed to have arranged.

33    At the adjourned hearing on 16 June 2016, the appellant appeared in person and contended generally that there were a number of errors in the Tribunal’s decision.

34    With regard to the appellant’s primary complaint, that the Tribunal did not believe his claims, the primary judge considered that the appellant’s disagreement with the Tribunal’s findings as to credibility took issue with factual findings that were open to the Tribunal on the evidence and material before it. Her Honour held that the Tribunal’s reasoning did not indicate illogicality or unreasonableness capable of amounting to jurisdictional error.

35    The appellant particularly complained that the Tribunal did not believe that his father was a member of the LTTE. In this regard, the primary judge noted that was not the basis on which his claims were presented in his visa application or to the Tribunal, nor was it the basis for the Tribunal’s decision.

36    The appellant further complained that the Tribunal did not accept his claim that his father needed an LTTE permit to work in the north of Sri Lanka, that the permit had been found by the authorities, and that an association with the LTTE was suspected on the part of his father. The primary judge noted that the Tribunal gave reasons for its findings.

37    The primary judge noted that, to the extent the appellant took issue with the Tribunal’s account of his evidence, there was no transcript of the Tribunal hearing in evidence before the Court. However, based on the Tribunal’s reasons for its decision, which recorded in some detail its exchanges with the appellant, the primary judge held there was nothing to support the appellant’s claims about what he said to the Tribunal.

38    With regard to the appellant’s complaint that the Tribunal did not consider his claims, the primary judge noted that the appellant’s primary claim was that he would be imputed with a political opinion on the basis of the authorities believing that his father was involved with the LTTE. The primary judge considered that the Tribunal addressed this and other claims made or arising on the materials before it and, in particular, having rejected the claim of a perceived association of the appellant’s father with the LTTE, did not accept that the appellant had a fear of persecution or significant harm on that basis.

39    The appellant also raised an issue regarding the quality of the interpreter who assisted him in an interview with his previous lawyer. Noting this issue did not relate to the departmental interview or the Tribunal hearing, the primary judge held it did not indicate jurisdictional error on the part of the Tribunal.

40    The primary judge further held that there was nothing on the material before the Court to suggest the Tribunal failed to comply with its obligations under s 425 of the Act, noting that the Tribunal asked the appellant questions and raised issues about matters such as his father’s claimed need for an LTTE permit after 2009 and why his father would be suspected of being an LTTE supporter, which the appellant responded to in his representative’s post-hearing submissions. Her Honour noted that while the Tribunal did not accept the appellant’s claims, it made findings leading to its conclusions, in particular that it did not accept that his father would have needed an LTTE permit to allow him to work in the north given the time period during which the appellant said his father worked there, and raised its concerns with the appellant at the hearing and allowed him an opportunity to respond in post-hearing submissions.

41    The primary judge accepted the Minister’s submission that the case could be distinguished from the circumstances in Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1060, in that relevant DFAT country information regarding the treatment of persons charged under Sri Lankan laws in relation to illegal departure was different. Her Honour noted that the information relied on in the present case was that returnees were usually granted bail on personal recognisance, with the requirement for a family member to act as a guarantor. Unlike SZTQS, there was no reference to a financial payment or surety. The Tribunal accepted on that evidence that bail would be granted to the appellant and would likely be conditional only on a personal recognisance, while in SZTQS, the key issue was whether the appellant’s family could pay a financial surety for release on bail.

42    The primary judge further held that the Tribunal’s findings in relation to complementary protection were not inconsistent with the approach taken by the Full Court of this Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. In this regard, the primary judge noted that the Tribunal acknowledged its obligation under the Ministerial direction to consider policy guidelines and any relevant country information assessment prepared by DFAT, and addressed the country information assessment on Sri Lanka prepared by DFAT in some detail. Her Honour considered there was nothing to indicate that the Tribunal failed to engage with the guidelines to the extent it was necessary to do so, having regard to the nature of the appellant’s claims which focused on the possibility of extra-judicial harm in vague terms and post-release bribery attempts.

43    In the result, the primary judge held no jurisdictional error was established, and so dismissed the appellant’s application for judicial review.

44    The primary judge also granted the Minister’s request for costs in the sum of $6,300.

45    The appellant now appeals from the primary judge’s decision.

Appeal to this court

46    In his notice of appeal filed 28 June 2016, the appellant claims the primary judge erred in failing to find that the Tribunal committed jurisdictional error on the following grounds:

2.    When the RRT deciding that cruel or inhumane treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the AAT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The AAT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.

3.    The Federal Circuit Court erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed me.

Particulars

4.    The Respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reasons but as inhumane.

47    The appellant did not file any submissions but appeared as a self-represented party at the hearing and made oral submissions.

48    He was invited to make oral submissions following the outline of the Minister’s oral submissions, in order to aid him to focus his submissions in response to those that had been previously filed in writing by the Minister.

49    The appellant submitted that the situation in Sri Lanka was not safe for Tamil people and that he still needed protection in Australia from what would await him should he return. He made reference to what he understood to be recent events that demonstrated that the life and safety of Tamil people in Sri Lanka is threatened. He said it was not safe for him to return.

50    The Court indicated to the appellant that the appeal in this Court must necessarily focus on the question of what legal errors, if any, were made by the primary judge and also the question, raised by the Minister, whether the appellant should be permitted to raise grounds of appeal which do not appear to relate to any proposition previously argued in either the Tribunal or before the Court below.

51    In the result, the submissions made by the appellant on this appeal were not directly referable to the grounds specified in his notice of appeal and set out above at [46] or his entitlement now to raise them.

52    Counsel for the Minister made submissions both in writing and orally at the hearing.

53    I do not consider the primary judge’s judgment is affected by appellable error for the following reasons.

54    The grounds of appeal take issue with the Tribunal’s complementary protection findings in relation to the conditions the appellant would face upon return to Sri Lanka by reason of his illegal departure – issues that were traversed by the Full Court of this Court in SZTAL, but not raised by the appellant in the Court below.

55    The Tribunal did consider, in passing, whether, for the purposes of s 36(2)(a), the appellant might suffer “significant harm” if he were to return to Sri Lanka. This was an inquiry made for the purpose of deciding whether or not Australia owed the appellant protection. It was not a distinct inquiry into Australia’s complementary protection obligations under s 36(2)(aa). However, at [37] of the Tribunal’s reasons for decision, the Tribunal also concluded that looking at the claims as a whole, the Tribunal was not satisfied that the appellant would suffer “significant harm”. Accordingly, the Tribunal was not satisfied the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa).

56    At [36] of its reasons, the Tribunal found that the appellant would not be subjected to arbitrary deprivation of life, or the death penalty or torture from anyone in the course of, or as a result of, prosecuting him on return to Sri Lanka. In particular, the Tribunal found that the process of penalising him would not amount to cruel or inhuman treatment or punishment, or to degrading treatment or punishment either. The Tribunal considered that there was insufficient evidence before the Tribunal of an “intention on the part of the authorities” to inflict, or a real risk that others would inflict, harm upon him during that process.

57    But, at [36], the Tribunal also found that the appellant would only be fined for illegal departure from Sri Lanka and that the evidence did not support a finding that the penalty would amount to significant harm. The Tribunal, noting the emphasis by the appellant and his advisor on others exploiting the process to bribe him, said that it was not satisfied on the evidence that the treatment suggested would amount to significant harm, or that there was a real risk of his facing such treatment. The Tribunal said it did not accept on the evidence that the appellant faced a real risk of extra-judicial violence or other significant harm in Sri Lanka.

58    Those findings both deal with a question of intention on the part of the Sri Lankan authorities to inflict harm and in doing so does not appear to have drawn a distinction between subjective intention on the part of the authorities or any other form of intention. Further, I construe the latter part of those findings to constitute a finding that the process of penalisation described does not, of itself, constitute “significant harm” for the purposes of a complementary protection provision.

59    In these circumstances, I find the particular grounds that the appellant now wishes to rely upon, as set out at [46] above, are new and were not, at the very least, raised in the Court below.

60    As a result, the appellant needs leave to pursue these new grounds of appeal. For leave, the appellant must demonstrate that it is “expedient in the interests of justice to allow the new ground[s] to be argued and determined”. See VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]; [2003] FCAFC 74. As the Full Court observed some years ago in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48]; [2004] FCAFC 158:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

61    The Minister submits the grounds of appeal have no merit and that leave should be refused on this basis.

62    The Minister says that, in dismissing the appeal, the Full Court in SZTAL generally endorsed the conclusions of Driver J at first instance in that case, which were that the Tribunal had not misapplied s 5(1) and s 36(2A) of the Act in asking whether the Sri Lankan government had the requisite intention to inflict cruel, inhuman or degrading treatment or punishment. Specifically, the Full Court, at [41], concluded that the Tribunal’s decision was consistent with the proposition that the expression “intentionally inflicted” required an actual subjective intention to cause the relevant harm.

63    In the present matter, the Minister notes that the Tribunal found that the appellant would not be subjected to arbitrary deprivation of life, or the death penalty or torture from anyone in the course of, or as a result of, the process of prosecuting him on return to Sri Lanka. The Minister further notes that the Tribunal found that the process of penalising the appellant would not amount to cruel or inhuman treatment or punishment, or to degrading treatment or punishment, because, on the evidence before it, there was insufficient evidence of an intention on the part of the authorities to inflict, or a real risk that others would inflict, harm upon the appellant during the process.

64    The Minister submits that, in light of SZTAL, the Tribunal did not err with respect to its finding pursuant to the complementary protection criterion, including at [36] of its reasons, that there was no “intention” for the purposes of the definitions of significant harm. The Minister further submits that the primary judge was correct to find as such at [59] of her Honour’s reasons.

65    I accept these submissions. While the decision in SZTAL is the subject of an application for special leave to appeal to the High Court of Australia, there is no reason to doubt the correctness of the decision of the primary judge in this instance.

66    As I have explained above, by reference to the Tribunal’s findings, not only did the Tribunal not distinguish, in dealing with the question of intention to inflict harm, between the subjective intent on behalf of the Sri Lankan authorities, or any other intention, but further, on my construction of the finding made, found that the process by which the appellant would be penalised on returning to Sri Lanka, did not in fact amount to significant harm.

67    In the circumstances, this new issue having been raised in this Court for the first time, I am unwilling to allow the appellant to raise this new issue at this stage of the proceeding.

68    The primary judge having otherwise dealt with the complementary protection issues in a manner that does not reveal any error, there are no grounds upon which this appeal can succeed.

69    As a result, the appeal should be dismissed with costs.

Order

70    For the reasons given above, the Court orders:

(1)    The appeal be dismissed.

(2)    The appellant to pay the first respondent’s costs, to be taxed if not agreed.

Associate:

Dated:    9 November 2016