FEDERAL COURT OF AUSTRALIA

SZVWN v Minister for Immigration and Border Protection [2016] FCA 1329

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant to pay the first respondent’s costs of the appeal, 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    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the former Refugee Review Tribunal affirming a decision of a delegate of the former Minister for Immigration and Citizenship not to grant the appellant a protection (class XA) visa.

2    The appellant is a male citizen of Sri Lanka of Tamil ethnicity and Christian faith. He arrived in Australia at Christmas Island in July 2012 without a visa.

3    The appellant, assisted by his representative at the time, applied for a protection visa on 12 November 2012. The appellant claimed to fear harm on the basis of a co-worker being kidnapped in 2006; failed abduction attempts in 2007; an extortion attempt in June 2012; his Tamil ethnicity; his imputed political opinions in support of the Liberation Tigers of Tamil Eelam (LTTE); and his membership of particular social groups, being “failed asylum seekers”, those who have left Sri Lanka illegally, and Tamils who have returned from working overseas. If returned to Sri Lanka, the appellant claimed he would face racial discrimination, serious physical abuse, or being killed.

4    A delegate of the Minister refused the appellant’s application for a protection visa on 3 July 2013. On 1 December 2014, the Tribunal affirmed the delegate’s decision under review.

5    The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 24 June 2016, the primary judge held that the Tribunal’s decision was not affected by jurisdictional error and so dismissed the appellant’s application. See SZVWN v Minister for Immigration & Anor [2016] FCCA 1665.

6    The appellant now appeals from the Federal Circuit Court’s decision by a notice of appeal filed 8 July 2016.

Delegate’s decision

7    The delegate accepted the appellant’s claim that a group of unknown men attempted to kidnap him twice within a ten day period in 2007. She further accepted that the appellant worked in Qatar from 2007 to 2010 before moving to Saudi Arabia for work in November 2010.

8    The delegate did not, however, accept that at any time after the appellant’s return to Sri Lanka in May 2012, two unknown men came to his house and demanded 2 million Sri Lankan Rupee from the appellant and, upon returning a few days later to find the appellant was not home, stole his laptop. She also did not accept that the Sri Lankan government or any associated paramilitary groups ever held, or continued to hold, an interest in the appellant.

9    In the circumstances, the delegate was satisfied that the essential and significant reasons for the harm feared were the Convention reasons of race, imputed political opinion and membership of the particular social group “Tamils who have returned from working overseas”, as required by s 91R(1)(a) of the Migration Act 1958 (Cth). She was further satisfied that the harm feared, namely abduction, assault, extortion and death, was serious harm and systematic and discriminatory conduct as required by s 91R(1)(b) and (c).

10    However, the delegate was not satisfied that Australia had protection obligations to the appellant under the Convention due to her conclusion that the appellant did not have a well-founded fear of persecution. As a result, the appellant did not meet the criteria for a grant of a protection visa under s 36(2)(a) of the Act.

11    The delegate was also not satisfied that Australia had protection obligations to the appellant on the basis 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 the appellant would suffer significant harm. Consequently, the appellant did not satisfy the criteria for a grant of a protection visa under s 36(2)(aa) of the Act.

12    Accordingly, the delegate refused to grant the appellant a protection visa.

13    The appellant then sought merits review of the delegate’s decision in the Tribunal.

tribunal’s decision

14    The appellant, together with his representative and a Tamil interpreter, attended a Tribunal hearing on 29 October 2014. At the hearing, the appellant was given opportunities to respond to country information and facts that the Tribunal considered adverse to the appellant’s application.

15    Based on the totality of the evidence, the Tribunal was satisfied that the appellant was a Catholic Tamil; that a co-worker of the appellant was kidnapped by an unidentified paramilitary group in 2006; and that the appellant lived in Qatar from April to October 2007 and in Saudi Arabia from November 2010 to May 2012 on working visas.

16    The Tribunal did not, however, accept that in 2007 the appellant narrowly escaped being kidnapped on two occasions. Despite raising apparent inconsistences in his accounts with the appellant, the Tribunal had significant doubts as to whether these events occurred, which were only reinforced by credibility issues more generally in relation to the appellant’s claims regarding extortion. In the circumstances, the Tribunal was not satisfied that the abduction attempts occurred. In any event, it did not consider that these events, which happened during the period of the civil war, established a future risk of harm to the appellant should he return to Sri Lanka.

17    The Tribunal also did not accept the appellant’s claim regarding an extortion attempt in 2012 involving two armed men entering the appellant’s home and demanding two million Rupees. While the Tribunal accepted that independent evidence established that extortion by paramilitary groups occurred in Sri Lanka, considering overall the “shifting nature” of the appellant’s evidence, the significant inconsistencies (which were raised with the appellant at the Tribunal hearing), and plausibility concerns, it was not satisfied that the extortion attempts occurred to the appellant.

18    Consequently, the Tribunal was not satisfied that, on the evidence before it, the appellant, at the time he left Sri Lanka for Australia in July 2012, was of interest to or identified by criminal gangs or paramilitary groups for extortion, or had an adverse profile of any nature which gave rise to a real chance of serious or significant harm.

19    The Tribunal then considered whether the appellant faced a risk of future harm in Sri Lanka upon return and in the reasonably foreseeable future.

20    In this regard, the Tribunal extensively cited country information on the human rights situation in Sri Lanka and the risks faced by Tamils, including the relevant report of the Department of Foreign Affairs and Trade (DFAT). In reliance on this information, the Tribunal concluded that the human rights situation in Sri Lanka continued to be problematic: torture was practiced by state authorities; and disappearances and killings continued, although apparently on the decline. It further found that Tamil citizens were disproportionately affected by these abuses, and that there was a lack of state accountability and protection. However, having regard to guidelines developed by the United Nations’ High Commissioner on Refugees, the Tribunal noted that Tamil ethnicity itself did not establish a group based protection mechanism for Tamils; the risk was limited to those who had or were perceived to have a significant role in relation to post-conflict separatism.

21    In circumstances where the appellant indicated that he had no actual personal or family links to the LTTE; his mother, sister and brother-in-law continued to live in Sri Lanka without any apparent difficulties; the Tribunal did not accept that he was subject to abductions in 2007 and extortion attempts in 2012; and he was able to leave and enter the country lawfully to travel and live in Qatar, the Tribunal concluded that the appellant would not face a real chance of suffering discrimination that would constitute serious harm if he returned to Sri Lanka. Consequently, it was not satisfied that the appellant faced a real chance of serious harm in connection with his Tamil ethnicity and political association in the reasonably foreseeable future.

22    With regard to the appellant’s claim that he would be perceived to hold anti-government or pro-LTTE political views, the Tribunal considered its conclusions regarding race were also applicable to this claim given their interrelated nature. It was not satisfied that there was any evidence that established that the appellant would be perceived to hold anti-government or pro-LTTE views of a nature that would put him at a risk of serious harm simply because he was a Tamil, and noted that neither the appellant nor his family had links to the LTTE.

23    In response to the appellant’s submission that the DFAT information failed to give due regard to the complex interplay between racial and political reasons for persecution in Sri Lanka, the Tribunal considered that there was a variety of other independent evidence suggesting that merely being a Tamil did not impute a person with LTTE or political links that would create a risk of harm.

24    The Tribunal was also not satisfied that the appellant would be imputed with such political opinions because he travelled illegally to Australia and sought asylum here.

25    With regard to the appellant’s claim to fear harm on the basis of his membership of the particular social group of “failed asylum seekers”, the Tribunal again extensively cited country information regarding the treatment of failed asylum seekers. Having done so, it noted that the claims of torture and mistreatment of failed asylum seekers were made in 2012 in relation to refugees returning from the United Kingdom, and were not able to be verified by DFAT. It considered that the independent evidence established that the appellant would be investigated at the airport and interviewed by Sri Lankan authorities, who would seek to identify the appellant, undertake checks on him and question him about his manner of departing the country. Noting the conflicting information in this regard, the Tribunal held that the preponderance of information suggested the appellant did not face a real chance of being detained for more than several days while this occurred.

26    In terms of the appellant’s broader treatment upon his return to Sri Lanka as a failed asylum seeker, the Tribunal held that the preponderance of information established the appellant would face no different circumstances as any other Sri Lankan Tamil, and that there were no special circumstances applying to the appellant that would create a risk of additional harm.

27    Consequently, on the basis of the independent evidence and the fact that the appellant had no actual links, or no reasonable basis to impute links, to the LTTE, the Tribunal assessed the risk of harm to the appellant as a result of him being a failed asylum seeker as less than a real chance.

28    The Tribunal then thoroughly considered country information regarding the treatment of persons who departed Sri Lanka illegally upon their return to Sri Lanka. Based on this information, the Tribunal accepted that the appellant would be charged with an offence under Sri Lankan departure laws and consequently fined, and may be held for several days to a fortnight in prison on remand before being granted bail. It noted that while conditions in Sri Lankan prisons were substandard and crowded and very uncomfortable, there was no evidence to suggest deliberate mistreatment of persons in the situation of the appellant.

29    However, the appellant submitted that country information from DFAT should be treated with caution because DFAT relied on information from the Sri Lankan government in this regard. The Tribunal accepted that DFAT did receive information concerning the treatment of failed asylum seekers from the Sri Lankan government and so, to that extent, the information should be treated with some caution, but considered that the information was corroborated by other sources. On that basis, the Tribunal was prepared to accept the information provided by the Sri Lankan government, but noted that it did not rely exclusively on DFAT reports in reaching its conclusions.

30    In the circumstances, the Tribunal did not accept that one or more of the five Convention reasons would be the essential and significant reason for the appellant spending up to a fortnight in jail on remand if he returned to Sri Lanka. It held that the essential and significant reason for penalties under Sri Lankan departure laws was to prevent unregulated departures, and that the laws were of general application and applied in a non-discriminatory manner.

31    The Tribunal was also not satisfied that the appellant faced a real chance of persecution upon his return to Sri Lanka due to being a Tamil who had returned from working overseas and was thus perceived to be wealthy.

32    As a result, the Tribunal was not satisfied that the appellant faced a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future.

33    For the same reasons, the Tribunal was not satisfied that the appellant faced a real risk of treatment amounting to significant harm as contemplated by s 36(2A) of the Act.

34    Ultimately, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Convention. As such, it held that the appellant did not satisfy the criteria for a visa under s 36(2)(a) or (aa), and affirmed the delegate’s decision.

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

judicial review in the federal circuit court

36    In his amended application for judicial review of the Tribunal’s decision dated 16 March 2015, the appellant raised the following grounds:

The RRT has declined its jurisdiction failing to assess as to whether I would be persecuted as a young Tamil male aged 29 from a village of Ambari District of Sri Lanka (a particular part of Sri Lanka) but it has assessed that there is no persecution for Tamils generally.

There is information before the RRT and the country information on Sri Lanka indicates that that the failed asylum seekers are held in prison several days in overcrowded and unpleasant conditions. The prison conditions are poor.

The RRT made an error when deciding that cruel or inhuman 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 RRT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The RRT 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.

I intend to listen the RRT hearing CDs and to find out any other legal errors. I will state it in my submission before the Court hearing.

37    The appellant confirmed at the hearing on 24 June 2016 that he wished to rely on the grounds raised in the amended application, together with written submissions filed on 19 May 2016.

38    The primary judge noted that the appellant’s written submissions sought that the Tribunal’s decision be quashed on the basis that the Tribunal failed to exercise its jurisdiction, and claimed that the appellant had a good merits review case with new evidence.

39    With regard to the appellant’s claim that the Tribunal failed to assess whether he would be persecuted as a young Tamil male aged 29 years from a village of the Ambari District of Sri Lanka, the primary judge stated that it was well established that the Tribunal was only under an obligation to consider claims that were expressly raised or that arose clearly or squarely or were apparent on the material before it. Her Honour noted that when asked, the appellant apparently considered that this claim arose implicitly on the material before the Tribunal.

40    The primary judge then noted the extensive amount of information before the Tribunal about persecutions of Tamils in Sri Lanka, particularly regarding those from the north and east of the country. Her Honour also noted that the Tribunal acknowledged and dealt with the appellant’s claim that he was at a particular risk of being a victim of extortion not only as a Tamil returning from work overseas, but also because he had previously worked in a Sinhalese area. More generally, her Honour considered there was nothing in the material before the Court to establish that a claim of the precise nature contended for by the appellant arose clearly or squarely or was apparent on the material before the Tribunal.

41    The primary judge further held that, to the extent the appellant complained that the Tribunal did not consider the problems he faced specifically, the Tribunal did consider the particular situation of the appellant. In this regard, her Honour noted that the Tribunal considered not only the appellant’s claims of past extortion and abduction attempts, but also his particular circumstances when living in Sri Lanka.

42    The primary judge was also not satisfied that the appellant’s complaint that the Tribunal failed to have regard to his place of residence and work and origin was made out, concluding that the Tribunal’s findings sufficiently addressed the appellant’s particular circumstances.

43    Her Honour went on to note that the Tribunal had regard to independent country information in rejecting the claim that being a Tamil exposed the appellant to being imputed to hold a particular political opinion, and had regard to the additional factors relating the appellant.

44    In the circumstances, the primary judge concluded that the Tribunal’s findings were open on the material before it for the reasons it gave and were not such that its reasoning could be categorised as illogical or unreasonable in a manner amounting to jurisdictional error. Her Honour held that the appellant’s disagreement with the Tribunal’s conclusions in this regard sought merits review, which was not available in the Federal Circuit Court.

45    With regard to the appellant’s claims in the second and third paragraphs of his grounds of review above, the primary judge noted that the Tribunal acknowledged relevant country information, and considered the issue in relation to the both the criterion in s 36(2)(a) and (aa) of the Act. The primary judge further noted that the Tribunal accepted that prison conditions in Sri Lanka were substandard, crowded and very uncomfortable, and specifically considered, but found no evidence to suggest, “the deliberate mistreatment of returnees in detention or intentional infliction of harm in the requisite sense in the definitions of degrading treatment and cruel or inhuman treatment or punishment”. To the extent the appellant disagreed with the Tribunal’s conclusions in this regard, the primary judge considered that the appellant sought impermissible merits review. The Tribunal considered whether the appellant’s possible detention in an overcrowded jail with unpleasant conditions would amount to significant harm and, in that context, whether the harm would be intentionally inflicted, but concluded that the conditions were the product of the general state of the system, negligence and indifference, rather than amounting to intentionally inflicted harm on the basis contended for by the appellant. Consequently, her Honour held that this aspect of the appellant’s claim was not made out.

46    The primary judge noted that the Tribunal also considered these matters in the context of addressing the criteria in s 36(2)(a) of the Act, but, for the same reasons set out above, was not satisfied that the prison conditions to which the appellant may be exposed amounted to a real risk of serious harm. It accepted that conditions in Sri Lankan prisons were substandard, crowded and very uncomfortable, but found no evidence to suggest deliberate mistreatment of returnees in detention on remand after being charged for leaving the country illegally – conclusions that the primary judge considered were open to the Tribunal on the material before it. To the extent the appellant disagreed with the Tribunal’s conclusions in this regard, the primary judge again considered that the appellant sought impermissible merits review, and so held that this aspect of the appellant’s claim was not made out.

47    In circumstances where the appellant did not raise any other grounds of review in his written or oral submissions, the primary judge held that no jurisdictional error had been established, and so ordered that the application be dismissed.

48    As the appellant was unsuccessful, the primary judge considered the Minister’s request for costs in the sum of $5,000 to be reasonable and appropriate.

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

Appeal to this court

50    In his notice of appeal filed 8 July 2016, the appellant says the primary judge erred in failing to find that the Tribunal “erred in law and declined its jurisdiction” 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 AA T 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 intentional1y inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.

3.    The RRT has declined its jurisdiction failing to assess as to whether I would be persecuted as a young Tamil male aged 29 from a village of Ambari District of Sri Lanka (a particular part of Sri Lanka) but it has assessed that there is no persecution for Tamils generally.

4.    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 to me.

Particulars

5.    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.

51    The appellant did not file written submissions prior to the hearing but appeared as a self-represented party and made oral submissions.

52    The appellant, recognising that he had not filed any written submissions, sought a short adjournment to have written submissions prepared. The Court, however, having regard to the history of the matter and the time that had already been available prior to the hearing for the filing of the submissions, declined that request.

53    More generally, the appellant made submissions concerning what commonly happens to people who return to Sri Lanka, emphasising on more than one occasion that he was not submitting it was necessarily specifically what would happen to him.

54    He made reference to the fact that many had been killed in Sri Lanka in the last six months.

55    He made reference to people being placed in jail.

56    These submissions were not directly referable to the grounds of appeal, but tended to go to the merits of the appellant’s claims that were initially considered by the Tribunal. Indeed, his desire was that the matter should be returned to the Tribunal for further consideration in the light of further evidence.

57    That course of action, however, is not available to this Court, unless legal error in the Court below can be demonstrated and the earlier decision of the Tribunal set aside.

58    For the reasons which follow, I do not consider that the appellant has demonstrated that the primary judge made any such errors or that the Tribunal exceeded its jurisdiction when it made its initial decision.

59    As to the grounds numbered 2, 4 and 5, it is apparent from the careful findings of the Tribunal, as reviewed by the primary judge, that the complementary protection obligations referred to in s 36(2)(aa) were regarded by the Tribunal and that, in particular, the circumstances in which the appellant would likely be held upon being returned to Sri Lanka were considered by the Tribunal. The Tribunal expressly took into account the fact that conditions in Sri Lankan prisons were substandard, crowded and very uncomfortable, but found there was no evidence to suggest deliberate mistreatment of persons in the situation of the appellant. If not expressly, then by inference, the Tribunal took into account the fact that the Sri Lankan authorities were aware of these prison conditions. Rather, as the primary judge emphasised, the Tribunal concluded that the conditions were the product of the general state of the system, negligence and indifference, rather than amounting to intentionally inflicted harm on the basis contended for by the appellant.

60    As a result, these grounds must fail.

61    As to ground 3, the primary judge reasonably concluded that nothing in the material before the Tribunal identified a group liable to persecution in those very specific terms. The primary judge noted that the appellant apparently considered that the claim arose implicitly on the material.

62    Having regard to the reasonable findings of the primary judge, I accept there is nothing in the material before the Court to establish that a claim of the precise nature contended for arose clearly or squarely or was apparent on the material before the Tribunal.

63    As the primary judge correctly held, to the extent that the appellant complained that the Tribunal did not consider the problems he faced specifically, the Tribunal did consider the particular situation of the appellant and, in particular, considered not only his claims of past extortion and abduction attempts, but also his circumstances when living in Sri Lanka.

64    For these reasons ground 3 also fails.

65    In these circumstances, the appeal should be dismissed with costs.

Orders

66    The Court orders:

(1)    The appeal be dismissed.

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

Associate:

Dated:    9 November 2016