FEDERAL COURT OF AUSTRALIA

SZWDN v Minister for Immigration and Border Protection [2018] FCA 278

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs fixed in the sum of $3,000.

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

REASONS FOR JUDGMENT

Revised from transcript

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal, now a part of the Administrative Appeals Tribunal, the second respondent. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a protection visa to the appellant.

Overview

2    The appellant is from Sri Lanka. On 2 August 2012, he arrived on Christmas Island by boat as an unauthorised maritime arrival. On 22 November 2012, he was granted a bridging visa, which has since been renewed. He has been living in the community in Australia for over five years. On the same day, that is 22 November 2012, the Minister lifted the bar on him making an application for a protection visa that otherwise existed under s 46A of the Migration Act 1958 (Cth). On 20 December 2012, he applied for a protection visa. Attachments to his application included a statement of his claims in a statutory declaration, supporting documents and submissions.

3    On 24 June 2013, the appellant was interviewed by a delegate of the Minister. On 18 September 2013, the delegate refused the grant of a protection visa, providing concise but comprehensive reasons for that decision. The appellant’s claims were summarised by the delegate as follows:

•    In 2009 the [appellant’s] father’s relative stood for political office as a UNP candidate. The [appellant’s] father assisted in campaigning.

•    The night that election results were released, Sinhalese men came to the [appellant’s] family home and attempted to forcefully take the [appellant’s] father. The [appellant] intervened and was pushed and hit. The [appellant] hit back at some of the men. Neighbours and relatives rushed to assist them and the Sinhalese men left. The [appellant’s] father explained that the violence was due to his involvement in the election.

•    The following night, more Sinhalese men came to the [appellant’s] house, carrying weapons. The men grabbed the [appellant’s] grandfather, threatened him and demanded the whereabouts of the [appellant] and his father. They threatened that when they see the [appellant] and his father, they would be shot.

•    The [appellant] returned to Sri Lanka in 2012 and stayed in Kathirkaman (which the [appellant] states is 700km away from his home) for ten days before returning to Dubai. The [appellant] could not stay there any longer as he would have to get permission, and as a Sinhalese area the party members could have been advised of his presence there.

•    The night after the [appellant] returned to his mother’s house in Sri Lanka, men forced their way into the house and beat up the [appellant’s] brother-in-law. They had apparently mistaken his brother-in-law for the [appellant]. These men threatened the [appellant’s] family that they will find the [appellant] and kill him.

•    The [appellant’s] family was subjected to persecution and danger and his life was at great risk.

•    The [appellant] cannot relocate as this requires registration and details of past addresses and activities, which would be revealed to the political party which has links with the police.

•    Regarding state protection, the [appellant] asserts that the police will not aid Tamils, and the police are assisting the political party and would reveal his whereabouts.

4    While the delegate was satisfied that the harm feared was serious harm and systematic and discriminatory conduct as required by s 91R(1)(b) and (c) of the Migration Act 1958 (Cth), none of those fears were assessed as being well-founded, in the sense that there was any real chance that they would be realised, applying the well-established principles set out in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. That assessment was substantially based on country information from a wide range of international agencies and other sources. The same assessment of risk was applied to the appellant’s claim for complementary protection, with the delegate concluding that she was not satisfied that there was a real risk that the appellant would be subjected to significant harm.

5    On 30 September 2013, the appellant applied to the Tribunal for merits review of the delegate’s decision. The appellant appeared before the Tribunal on 9 December 2014 (there is an apparently mistaken reference to 8 December 2014 in a part of the Tribunal’s reasons). The appellant also provided post-hearing written submissions.

6    On 2 February 2015, the Tribunal affirmed the delegate’s decision. Key aspects of the appellant’s evidence were not accepted as a matter of credit, largely due to inconsistencies in the account he gave when the details were examined. The Tribunal approached the issue of adverse credit findings with caution. The reasoning behind those conclusions was comprehensively and clearly stated. That included the way in which the various issues were raised with the appellant. As a result, the Tribunal reached similar conclusions to the delegate both as to the appellant’s refugee claims and his complementary protection claims, albeit with differences in reasoning and detail. There is no evident deficiency in the Tribunal’s process or reasoning, including as to any apparent issue of any denial of procedural fairness.

7    On 20 February 2015, the appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. On 17 July 2015, the appellant filed a further application for judicial review. The primary judge addressed both applications, rather than treating the second as supplanting the first.

8    The hearing before the primary judge took place on 26 September 2017. On 12 October 2017, his Honour delivered a judgment giving clear and concise reasons for dismissing both applications for judicial review, including assertions made in submissions. His Honour summarised the claims made in the appellant’s initial statutory declaration and then summarised the Tribunal’s reasons, before turning to the grounds of review. It is necessary to reproduce both in full, because of the breadth and lack of particularisation of the notice of appeal before this Court:

(1)    The notice of appeal asserts that:

1.    His Honour erred in not finding that the Tribunal erred by not considering all the integers of the applicant’s claims.

2.    His Honour erred in not finding that the Tribunal erred by introducing irrelevant considerations.

(2)    The primary judge’s summary of the appellant’s claims was as follows:

a)    The [appellant] is a Tamil and a Hindu.

b)    In 2006 the Sri Lankan Army (SLA) came to the [appellant’s] village after which “we lost our freedom”. The SLA imposed a 6 pm curfew whereby “any movement outside of our homes” was prohibited.

c)    On 10 February 2009 there was a general election and a relative of the [appellant’s] father stood for the UNP (which I understand is a reference to the “United National Party”). The [appellant’s] father assisted in the relative’s election campaign.

d)    On 13 February, after the election results were “released”, six Sinhalese men came to the [appellant’s] house looking for the [appellant’s] father. The men wanted the [appellant’s] father to accompany them somewhere, but he refused. The men attempted to take the [appellant’s] father, but the [appellant] intervened and an altercation ensued. When neighbours arrived at the [appellant’s] home in response to the [appellant’s] mother’s screaming, the men beat the [appellant’s] father and left.

e)    On the advice of relatives, the [appellant’s] father agreed to leave for Mullaitivu, and the [appellant’s] aunt convinced the [appellant] to go to her house which was one kilometre away because he would be at risk if he remained at his home. The [appellant] went to his aunt’s house the next day.

f)    On the night after the [appellant] commenced living at his aunt’s house, a truck containing approximately twenty five Sinhalese men came to the [appellant’s] house. The men had been drinking and were carrying weapons. The men grabbed and threatened the [appellant’s] grandfather and demanded he tell them where the [appellant’s] father was. The men also searched and damaged the [appellant’s] house.

g)    After his mother informed him of this incident, the [appellant] contacted a friend in Dubai and arranged to travel to Dubai where he stayed until 23 March 2012. The [appellant] returned to Sri Lanka to attend his sister’s wedding at a place 700 kilometres from his village. The [appellant] stayed for ten days and then returned to Dubai.

h)    After the [appellant’s] visa in Dubai expired, he returned to Sri Lanka on 9 July 2012. The [appellant] returned to his mother’s house. The night after he arrived, however, there was a prowler in the [appellant’s] house. The [appellant] ran away to the forest because he was “very fearful”. Shortly after the [appellant] fled to the forest, “8 or 9 men forced their way into” the [appellant’s] house and “they commenced to beat up” the [appellant’s] brother-in-law. “Apparently they assumed” the [appellant’s] brother-in-law was the [appellant]. The attackers eventually acknowledged they had made a mistake and stopped. They threatened the [appellant’s] family and said they will find the [appellant] “one day” and kill him.

i)    After the [appellant] witnessed the injuries his brother-in-law sustained, and the damage to the house, his brother-in-law arranged for the [appellant] to leave for Australia.

j)    The [appellant] fears returning to Sri Lanka because he believes Sri Lankan authorities will not protect him. Police “will not aid Tamils”, but instead “they are assisting the political party and will reveal my whereabouts”.

9    The primary judge’s summary of the Tribunal’s reasons was as follows:

3.    The Tribunal found the [appellant] had only a “vague and generalised knowledge of the events he claimed” occurred, and a “poor recollection of events due to his admitted memory failure and memory lapses”. The Tribunal found there were a number of inconsistencies in the [appellant’s] evidence.

4.    In light of that conclusion, the Tribunal made the following findings:

a)    In February 2009 the [appellant’s] father’s relative (whom the Tribunal described as “a cousin”) “stood for the UNP party”; the [appellant’s] father assisted the relative in that election campaign; and on election night or shortly afterwards some unknown Sinhalese men came to the [appellant’s] house looking for the [appellant’s] father. In an incident that lasted one or two minutes, the [appellant’s] father was pushed and shoved and threatened, but not beaten or taken away. The [appellant’s] father did not immediately flee to Mullaitivu, and the [appellant] did not leave the following day to stay at his aunt’s house.

b)    Twenty five unknown Sinhalese men then attacked the [appellant’s] parent’s house the night after the unknown Sinhalese men had appeared at the [appellant’s] parents’ house. The event, however, did not occur in the manner the [appellant] claimed it occurred.

c)    The [appellant] went to Dubai and stayed there for three years, but not because of the attack by the Sinhalese men. The [appellant] did not on the night in 2012 after he returned to Sri Lanka from Dubai run away from his house because of the presence of a prowler. Nor was the [appellant’s] brother-in-law beaten up.

5.    The Tribunal then considered whether the [appellant] has a well-founded fear of persecution because he is Tamil and Hindu, and because of imputed links to the UNP based on his father’s support for a relative standing for election in 2009. Relying on country information which it identified in its reasons, the Tribunal was not satisfied the [appellant] has a well-founded fear of persecution because of his Tamil ethnicity, or because the [appellant] will be perceived to be a supporter of the UNP, or because he is Hindu.

6.    The Tribunal was also not satisfied that the [appellant] had a well-founded fear of persecution because he is a member of the particular social group of illegal deportees who are also failed asylum seekers. The Tribunal accepted country information that indicated the [appellant] would be questioned at the airport, and detained and investigated by Sri Lankan authorities. The Tribunal found, however, that it is unlikely the [appellant] would be detained for more than a few days while investigations are being carried out, and that the most likely penalty the [appellant] would face for illegally departing Sri Lanka would be a fine. The Tribunal also found that the [appellant’s] being charged and detained for illegally departing Sri Lanka would be the result of a “non-discriminatory enforcement of a law of general application”.

7.    For these reasons, the Tribunal was not satisfied the [appellant] had a real chance of serious harm for any of the reasons the [appellant] claimed; and, so it found the [appellant] was not a refugee under s.36(2)(a) of the Migration Act 1958 (Cth) (Act).

8.    The Tribunal then considered whether the [appellant] satisfied the criterion for complementary protection under s.36(2)(aa) of the Act. The Tribunal considered whether the [appellant’s] being detained for a few days on his return to Sri Lanka would singularly or cumulatively constitute significant harm. The Tribunal relied on a report issued by the Department of Foreign Affairs and Trade in October 2014 (DFAT report) to the effect that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. The Tribunal concluded that, based on the [appellant’s] circumstances, and having regard to the DFAT report, there was no real risk that the [appellant] would suffer significant harm “in terms of s.36(2)(aa) of the Act”.

10    The appellant did not comply with directions to file written submissions. That is understandable given that he is neither legally qualified nor legally represented. Nor did he make any meaningful oral submissions, which is understandable for the same reasons.

11    The Minister filed and relied upon written submissions which summarised the appellant’s claims, the Tribunal’s reasons and the primary judge’s reasons in suitably neutral terms. Those submissions then asserted that no legal error was demonstrated by either ground in the notice of appeal. That position was maintained by the Minister at the appeal hearing. It is convenient to reproduce that part of the Minister’s written submissions (removing appeal book page references and placing footnotes into the text):

Ground 1

28.    The “integer of [his] claims” which the appellant complains the Tribunal failed to consider was the part of the post-hearing submissions in relation to harm faced by Hindus in Sri Lanka. The First Respondent submits that the primary judge was correct to dismiss Ground 1 of the Further Application for the reasons it did, namely on the basis that:

(a)    the claim that the Tribunal failed to have regard to the part of the post-hearing submissions that dealt with harm faced by Hindus in Sri Lanka was factually incorrect (at [15]). Indeed, the Tribunal set out the substance of those submissions at [34] and [35]; and

(b)    the complaint that the Tribunal found that the appellant would not face persecution on the basis of his Hindu religion without reference to the country information provided by the appellant’s representative (ie. that identified in the post-hearing submissions) does not of itself disclose jurisdictional error. The primary judge found, in the circumstances set out at paragraph (a) above, that it was reasonable to infer that the Tribunal considered the country information concerning the persecution of Hindus in Sri Lanka identified in the post-hearing submissions, and that it was open to the Tribunal to prefer to rely on the country information in the DFAT report (at [18]). The First Respondent submits that such findings were reasonably open to the primary judge for the reasons he gave, and notes that it is well-established that the weight to be placed on country information is a matter for the Tribunal (See NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ at [11]). It is well established that the Tribunal is not required to refer to every piece of material before it, provided that it identifies that material which is relevant to its reasoning and gives that material appropriate weight (WAEE v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 236 FCR, 604; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 (10 November 2004) [6]-[9]).

29.    As to the claim in particular (c) to Ground 1 of the Further Application that the Tribunal did not conduct the complementary protection assessment in relation to all of the appellant’s claims (but only evaluated the appellant’s claim to fear harm as an illegal departee), the First Respondent submits that the primary judge was correct to find that no error was disclosed, as:

(a)    the Tribunal made its findings in relation to s 36(2)(aa) of the Act in light of its findings in relation to s 36(2)(a) of the Act: see [66] and [68]; and

(b)    the factual basis of the claim under s 36(2)(a) was rejected by the Tribunal for the reasons that it gave. Those reasons were (for the reasons set out above), it is submitted, free from error; and

(c)    with the exception of the claim based on the [appellant’s] illegal departure from Sri Lanka, the [appellant’s] claims under s 36(2)(aa) of the Act as articulated could not survive the Tribunal’s findings of fact made in the s 36(2)(a) assessment. Accordingly, no jurisdictional error can be made out.

30.    The primary judge’s finding at [22] accords with (and was made citing) the principle set out in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56], which is good law (See further MZAKA v Minister for Immigration and Border Protection [2016] FCA 781, [22] (Davies J) and SZTIV v Minister for Immigration and Border Protection [2015] FCA 108, [10] (Edmonds J).

Ground 2

31.    The First Respondent submits that the primary judge’s findings in relation to Ground 2 of the Further Application were also reasonable and open to it, and do not disclose legal error.

32.    The appellant complained that the Tribunal erred by taking into account the “irrelevant consideration” of a list of characteristics of people at risk of persecution in Sri Lanka identified by the UK Upper Chamber. As the primary judge found, the ground “misunderstands the purpose” for which the Tribunal referred to the list of characteristics. The purpose for which the Tribunal had regard to the UK Upper Chamber’s list of identified characteristics was by way of country information, to determine which persons were at risk of persecution on return to Sri Lanka, and whether the appellant fell into one of the categories. The primary judge found, correctly it is submitted, that it was reasonably open to the Tribunal to have regard to the UK Upper Chamber country information, for that purpose (at [26]).

33.    No error can be established in this approach. The list of identified characteristics was clearly “relevant” to the assessment of the applicant’s claims. The Tribunal found that the applicant did not fall within those groups (at [56]). Accordingly, the Tribunal was not satisfied the applicant’s claimed fear of persecution was “well-founded” (at [58]). This is an entirely orthodox reasoning process which does not disclose error.

12    Those submissions should be accepted. No error on the part of the primary judge is apparent, nor any error on the part of the Tribunal, let alone jurisdictional error.

13    The appeal must therefore be dismissed with costs.

Post hearing determination of the lump sum costs application by the Minister

14    The Minister relied upon an affidavit of Ms Elodie Cheesman, affirmed on 2 March 2018. That affidavit detailed the costs that had been incurred by the Minister to date and minor costs estimated to be incurred. I am satisfied that it is appropriate to make the lump sum costs order sought, fixed in the sum of $3,000, being the mid-point between the upper and lower figures arrived at in Ms Cheesman’s affidavit. Accordingly, the appellant is to pay the Minister’s costs fixed in the sum of $3,000.

Associate:

Dated:    9 March 2018