FEDERAL COURT OF AUSTRALIA

SZTAP v Minister for Immigration and Border Protection [2017] FCA 1370

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This is an appeal from a decision and orders of the Federal Circuit Court of Australia (FCCA). The decision, which was published on 30 June 2017, is reported as SZTAP v Minister for Immigration and Border Protection & Anor [2017] FCCA 1510. In an ex tempore judgment, the primary judge rejected the appellant’s judicial review application in respect of a decision of the Administrative Appeals Tribunal (the AAT). The AAT affirmed a decision dated 11 February 2013 of the Minister’s delegate which refused the appellant a protection visa. The delegate’s decision was previously affirmed by a differently constituted AAT on 17 June 2013. That decision was subsequently set aside on 9 December 2015 by the Full Court (see SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 (SZTAP Full Court)).

2    This appeal relates to the primary judge’s decision in respect of the decision of the AAT on that remitter, which decision was published on 15 April 2016.

Summary of background facts

3    The relevant background facts are conveniently summarised by Robertson and Kerr JJ is SZTAP Full Court at [24] to [34]:

The claims

24    The Tribunal summarised the appellant’s claims as follows. The appellant was a member of Sri Lanka's minority Tamil community and was 18 years of age. He claimed to be from the fishing village of Udappu. From the age of 12, for six years, both during the civil war between the LTTE and the Government and subsequently, his mother had to pay sums of money to particular officers from the Criminal Investigation Department (CID). She did so because these men threatened to take the appellant in the absence of his father, who in 2006 was sought by the CID on suspicion of being in the LTTE. Because the appellant was becoming a young man and thus more likely to be targeted for kidnapping and harm by government forces, his family decided he should leave the country in 2012.

The findings

25    The findings of the Tribunal were as follows.

26    The Tribunal first addressed the issue of whether there was a real chance the appellant would be persecuted because of his Tamil race. The Tribunal found that the appellant had never been questioned, harassed or harmed by members of the security forces because of his race. The appellant had never been subjected to any serious harm, or indeed any discrimination or harm, because he was a Tamil. The Tribunal was satisfied that the chance of his being persecuted in the reasonably foreseeable future simply because he was a Tamil was remote.

27    The Tribunal then addressed whether there was a real chance the appellant would be persecuted as a result of being imputed with a political opinion through suspected links with the LTTE.

28    The Tribunal found that the appellant's mother had been subjected to extortion by certain officers from the CID in Udappu.

29    The Tribunal was satisfied that if the appellant returned to Sri Lanka, corrupt officers from the CID may continue to visit his mother and extort money from her as they had done for the past six years or so. The Tribunal was satisfied that those corrupt officers would continue to extort money from the appellant's mother using alleged suspicions about the appellant's father's connection with the LTTE as an excuse.

30    However, the Tribunal was not satisfied that, “despite their threats, these men intend to detain or harm the [appellant]. This is primarily because they have shown no interest in him.”

31    The Tribunal took evidence by telephone from the appellant's father in Sri Lanka. In answer to the question why the CID had not taken the appellant from his school, for example, by the day of the Tribunal hearing, even if not his home, the appellant’s father said it was because his son was “small”. The Tribunal said that that may once have been a reasonable explanation, but the appellant was now almost 19 years of age and was not a child. The Tribunal said it was not persuaded by this explanation and said: “It is far more likely that the corrupt officers' threats towards the [appellant] are bluff designed to elicit money from his mother.”

32    The Tribunal was satisfied that the corrupt officers did not intend to abduct the appellant before he left Sri Lanka. The Tribunal said the following, at [51]:

As to his treatment by them if he returns to Udappu, it is difficult to establish how these officers might react. However, having regard to their past conduct I am satisfied that their overriding aim is simply to extort money from his mother and, in the absence of any claim that she proposes to stop making payments, I consider that situation will continue unchanged despite the [appellant] no longer being a child. There is not a real chance that the [appellant] will be abducted or otherwise seriously harmed by these men if he returns to Udappu.

33    The Tribunal considered the complementary protection criteria. The Tribunal accepted that the appellant would be questioned at the airport on return, that he may also be charged with leaving the country illegally, that he could be held in remand for a brief period while awaiting a bail hearing, and that he might be later fined. The Tribunal was not satisfied that this would involve treatment amounting to significant harm in terms of the complementary protection criteria.

34    In this context, relevant to ground 3, the Tribunal said, at [61]-[62]:

I do accept however that under tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of the Immigration and Emigration Act are, regardless of ethnicity, arrested at the airport and brought before a court to apply for bail. This will plainly apply to the [appellant] as he left Sri Lanka without his passport. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. The evidence indicates that if the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo for a few days until a bail hearing is available. Conditions in remand have been described as dirty, cramped and uncomfortable, although there have been no reports that individuals awaiting bail hearings have been intentionally ill-treated. According to a local lawyer, when the cases come to court they might be fined between Rs. 50,000 and Rs. 100,000. However in the absence of these cases being finalised under the new tightened procedures there is insufficient evidence that the penalty will be applied in a discriminatory way towards the [appellant] for any of the Convention reasons.

Having considered the currently available information I am not satisfied that the treatment afforded returnees for departing Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, can reasonably be seen as constituting ‘serious harm’ to the [appellant], and systematic and discriminatory conduct. It follows that, on the basis of the current available evidence, I am not satisfied there is a real chance that the applicant would suffer Convention-related persecution for his illegal departure if he were to return to Sri Lanka.

(Citations omitted.)

4    In SZTAP Full Court, the Full Court upheld a ground of appeal which had not been argued in the FCCA in the previous judicial review proceeding. The Full Court held that there was illogicality in the reasoning of the AAT which, in the particular circumstances of the case, amounted to unreasonableness in the legal sense. This illogicality affected both the appellant’s Refugee Convention based claim and his claim for complementary protection. The illogicality related to the AAT’s reasoning concerning claims of extortion against the appellant’s mother and threats made by corrupt Criminal Investigation Division (CID) officers if the extortion was not paid.

The primary judge’s reasons summarised

5    The primary judge noted that the appellant claimed to fear harm by reason of his father’s suspected support for the LTTE and his mother’s alleged ongoing payments of bribes to CID officers, who threatened to abduct the appellant if his mother did not hand over his father to the CID officers. To avoid this, the mother paid bribes.

6    It was noted that the appellant participated in a hearing by the reconstituted AAT on 11 April 2016, following the remitter from the Full Court. The AAT raised with the appellant the possible implausibility of his claim that CID officers visited his mother two or three times a year in the period 2006 to 2014 and demanded money or information about the whereabouts of his father, in circumstances where the appellant’s evidence was that his father returned to the family village approximately ten times a year and had done so for the last 25 years. The AAT found that the claims that the mother was subject to ongoing extortion attempts was false. The AAT did not accept that the appellant’s father was suspected of being a supporter of the LTTE. It reasoned that, if he was, he would have been located in the six years prior to the appellant leaving Sri Lanka.

7    The AAT was also not satisfied that the appellant’s profile was such that there was a real chance that he would be abducted by men in white vans, contrary to the appellant’s claims.

8    The primary judge, in [11] of his reasons for judgment, stated that the ATT was not satisfied that the appellant’s father was seriously suspected of being a LTTE supporter or, more importantly, that he was so suspected after an incident which occurred in 2006. It is desirable to set out [24]-[26] of the AAT’s reasons for decision because they provide the focus for both the sole ground of judicial review below and the sole ground of appeal:

24    After considering the evidence, the Tribunal rejects as·false that the applicant's mother was subject to ongoing extortion attempts by CID men in Udappu, in order to pressure her to (principally if not solely) reveal the husband/father's whereabouts. As I am sufficiently satisfied the mother was not subject to ongoing extortion attempts for the reasons claimed by the applicant, I have also decided to find the mother was not subject to ongoing extortion attempts for any reason. Though the 2006 incident occurred when the applicant was approximately 12 years of age, I am satisfied the now 21 year old applicant would have known the reason for any ongoing extortion if this claim was true, and for the reasons set out herein, I am positively . satisfied his mother was not subject to ongoing extortion for the reasons he claimed (or at all).

25    Be that as it may, I propose to accept that in 2006, and on one occasion, the CID asked the mother about the whereabouts of her husband (the applicant's father). I propose to accept that a threat was made at that time and the mother paid a bribe to ensure the applicant was not abducted. I do not accept this occurred on more than one occasion. I also accept the applicant (and his siblings) were able to finish school (in Udappu) and the applicant graduated from a computer course in 2011 (he explained at hearing this was a 4 month course, which he completed at a TAFE). I also accept the applicant lived (apparently unharmed) at the family home in Udappu prior to departing Sri Lanka (in May 2012); and that his sister had finished school and was living at home while continuing further studies. The applicant also had said his brother was at school in Udappu.

26    However, I do not accept the father was suspected of being supportive of the LTTE. Otherwise, and for all the reasons set out herein, I am satisfied he would have been located in the six years prior to the applicant departing Sri Lanka after the 2006 incident. Therefore, if the father's whereabouts were sought in 2006 (including for the reasons claimed), I am satisfied this matter has been finally resolved well prior to the applicant departing Sri Lanka in June 2012.

9    The AAT did not accept that:

(a)    the appellant faced a real chance of persecution in Sri Lanka because he was a Tamil male, a young Tamil male from the west of the country, or as a Tamil man suspected of supporting the LTTE; or

(b)    the appellant had a real chance of suffering harm because of his illegal departure from Sri Lanka and the possible operation of Sri Lanka’s Prevention of Terrorism Act 1979 or Immigrants and Emigrants Act 1949, or because he would be viewed as a failed asylum seeker.

10    The AAT was satisfied that the appellant could relocate and live safely with his father in Sri Lanka without having a real chance of suffering any serious harm.

11    Finally, the Tribunal rejected the appellant’s claim for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) for substantially similar reasons to those summarised above.

12    The sole ground of judicial review in the FCCA was to the effect that the AAT had made a jurisdictional error “in that it failed to discern Convention nexus”. This was particularised as a failure to discern a Convention nexus “in that the applicant claimed and the AAT accepted that the Applicant’s mother paid bribe (sic) to prevent Applicant being arrested. This implied that the Applicant was suspected, and therefore imputed with the LTTE connections” (at [21] of the primary judge’s reasons for judgment).

13    This ground, together with oral submissions made below by the appellant, were rejected by the primary judge having regard to the AAT’s adverse credibility findings.

14    It is desirable to set out in full [26] of the primary judge’s reasons for judgment, which addressed the appellant’s claim that the AAT had fallen into a jurisdictional error because it failed “to discern Convention nexus”:

In relation to Ground 1, this is a case where the Tribunal made adverse credibility findings and rejected the applicant's claims. This case did not turn on whether or not there was a Convention nexus. The Tribunal provided cogent and rational reasons for the adverse findings in relation to the applicant's claims. On the face of the material before the Court the Tribunal complied with its statutory obligations in the conduct of the review.

The appeal

15    The appellant represented himself both below and on the appeal. The sole ground of appeal is that the primary judge erred in law “by misapplying well-founded fear test” (sic).

16    The appellant did not provide an outline of written submissions. After being invited by the Court to make oral submissions, the appellant complained that his claims that he would face “problems” in Sri Lanka were not accepted. When pressed to identify any error by the primary judge, the appellant indicated that he did not wish to say anything further in support of his ground of appeal.

Consideration and disposition of the appeal

17    It appears that the appellant’s essential complaint relates to the AAT’s reasoning in [25] of its reasons for decision (see [8] above), in which it accepted that the 2006 incident occurred, yet it rejected the appellant’s claim to be a refugee. As the particulars to the judicial review ground made plain, the appellant contended that, because the AAT accepted that the appellant’s mother had paid a bribe in 2006 to prevent him from being detained by corrupt CID officers, this necessarily implied an acceptance that the appellant was suspected as having LTTE connections.

18    The primary judge’s reasoning in [26] for rejecting this contention is notably brief. The appellant does not complain, however, that the reasons were inadequate in law (see BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; 241 FCR 450 at [8] – [16] per Flick J, with which I respectfully agree).

19    The fundamental difficulty with the appellant’s complaint, as reflected in ground 1 of his judicial review application and in his sole ground of appeal, is that it is predicated on an inaccurate reading of the AAT’s reasons. In [24] to [26] of its reasons for decision, the AAT drew a distinction between the particular incident which occurred in 2006, as opposed to the claims of ongoing extortion attempts by the CID officers against the appellant’s mother after the 2006 incident. The AAT made a finding of fact in [24] that the mother was not subject to ongoing extortion attempts for any reason, including the reasons advanced by the appellant. In [25], the AAT stated that it was prepared to accept that, on one occasion in 2006, the CID asked the appellant’s mother about the whereabouts of her husband and that the mother paid a bribe to ensure that the appellant was not abducted by the corrupt CID officers.

20    The AAT’s reasoning in [26] is not a model of clarity. That is for two reasons. First, the first sentence contains a statement that the AAT did not accept that the appellant’s father was suspected of being supportive of the LTTE. That finding, if viewed in isolation, is difficult to reconcile with the AAT’s acceptance in the previous paragraph that, on one occasion, in 2006 the appellant’s mother was asked by the CID about the whereabouts of her husband and the AAT’s implicit acceptance that the reason for that questioning was that the father was suspected of having links with the LTTE. Secondly, the third sentence in [26] is also cryptic. In particular, it is unclear why the AAT used the word “if” in that sentence, having regard to its acceptance in [25] that the 2006 incident occurred.

21    Fairly read, however, it appears that, despite its poor expression, the AAT found that the appellant’s father was no longer suspected by the CID as being a LTTE supporter in the period leading up to the appellant leaving Sri Lanka in 2012. That is because, if the father was so suspected, the AAT believed that he would have been located by the CID in the six years between 2006 and 2012. Having said that, the AAT then stated that, even if the 2006 incident occurred and the CID officers were searching for the appellant’s father because they suspected him of being a LTTE supporter, this was a one-off incident. The AAT was satisfied that the issue must have been finally resolved before the appellant left Sri Lanka in June 2012, presumably because of the AAT’s finding that there was no recurrence of the 2006 incident. Rather, it was viewed by the AAT as being an isolated and one-off incident.

22    The primary judge should have explained more fully why he rejected ground 1 of the judicial review application. All the more so given the obscurity of the AAT’s reasoning in the relevant paragraphs of its reasons for decision to which that ground related. It is perhaps understandable that the appellant may have had difficulty in understanding why ground 1 was rejected by the primary judge. To state that the case did not turn on whether there was a Convention nexus and that the AAT had “provided cogent and rational reasons for the adverse findings in relation to the applicant’s claims”, as stated by the primary judge in [26] of his reasons for judgment, did not clearly convey to the appellant why his judicial review ground was rejected. In my respectful view, the AAT’s reasoning in [26] could not reasonably be described as “cogent”. Nevertheless, although not ideally expressed, the AAT did attempt to explain why the 2006 incident did not provide a Convention nexus. That was because, fairly read, the AAT found that it was a one-off incident and, if the appellant’s father was suspected of being a LTTE supporter at that time, that suspicion did not continue. This was because of the AAT’s finding that there were no subsequent ongoing extortion attempts either for the reasons claimed or for any reason. This is made clear in the final sentence of [24] of the AAT’s reasons for decision.

23    If these matters had been elaborated upon by the primary judge in his reasons for judgment, the appellant may have had a clearer understanding of why his judicial review case failed. The appeal may never have been brought if the primary judge had given more extensive and clearer reasons for rejecting this judicial review ground. However, as noted above on the appeal, the appellant did not claim that the primary judge’s reasons were inadequate in law or that there had been a constructive failure to exercise the Court’s jurisdiction. To avoid doubt, I do not mean to suggest that either of these grounds would necessarily have succeeded if they had been raised.

24    I am not satisfied that the appellant has identified any appealable error in the primary judge’s reasons for rejecting the appellant’s sole judicial review ground.

25    I do not accept the Minister’s submission that costs should follow the event. For reasons given above, it is not difficult to understand why the appellant brought the appeal having regard to the brevity of the primary judge’s reasons for judgment and the difficulty of comprehending why his judicial review ground was rejected. I appreciate that the Minister bears no responsibility for this but I consider that it is appropriate that there be no order as to costs.

Conclusion

26    For these reasons, the appeal must be dismissed but there will be no order as to costs.

Associate:

Dated:    27 November 2017