FEDERAL COURT OF AUSTRALIA

SZWBQ v Minister for Immigration and Border Protection [2018] FCA 344

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Background

1    This is an appeal from the judgment of the Federal Circuit Court of Australia: SZWBQ v Minister for Immigration and Border Protection [2017] FCCA 624.

2    The appellant is a male citizen of Sri Lanka born on 19 January 1985. He arrived on Christmas Island on 17 July 2012 without a visa. In December 2012 the appellant lodged an application for a protection (Class XA) visa.

3    The appellant claimed to fear harm upon his return to Sri Lanka and to his village because of his Tamil ethnicity and his involvement with a Tamil political party, the Tamil Kootani Party (TKP).

4    On 9 December 2013 a delegate of the first respondent refused the application for a visa.

5    The appellant applied for a review of that decision by the Administrative Appeals Tribunal. The appellant appeared before the Tribunal and gave evidence.

Tribunal’s decision

6    By decision made 2 January 2015 the Tribunal affirmed the delegate’s decision. The Tribunal found that the appellant was involved in the TKP, but considered that he embellished his involvement in it, and that he had not been sought or harmed as a result of his involvement in the TKP. The Tribunal had concerns about the truthfulness of some of the appellant’s evidence. It concluded that steps he had taken to leave his village and travel to Qatar and Colombo were for the purpose of employment and not because he feared harm in his village.

7    The Tribunal said that it had regard to the appellant’s submission as to the position of returnees, both upon their immediate arrival and after their return to their village.

8    The appellant submitted before the Tribunal that when people are released and reach their village they are interrogated by the Criminal Investigation Department (CID).

9    The Tribunal had regard to the appellant’s submissions and also had regard to information before it from the Department of Foreign Affairs and Trade (DFAT), the United Kingdom’s Upper Tribunal (Immigration and Asylum Chamber) decisions and the United Nations High Commission for Refugees guidelines as to Sri Lanka. The Tribunal accepted there is some evidence of returnees suffering harm, and there remains a pervasive culture of violence within the Sri Lankan military police and government. The Tribunal accepted that DFAT did not monitor the situation for returnees to Sri Lanka but was satisfied that it relied upon evidence from reliable sources and the weight of the evidence indicates that the cases of returnees suffering harm overwhelmingly involve persons who have had reasonable links to the Liberation Tigers of Tamil Eelam (LTTE) or have criminal connections.

10    The Tribunal found that the appellant did not have a political profile as a LTTE supporter or member, or an adverse political profile as a result of his and his family's involvement with pro-Tamil political parties prior to his departure from Sri Lanka in mid-2012. The Tribunal was not satisfied that he had or has any political profile, imputed or otherwise, or that there was a real chance he would be harmed because of his race or ethnicity as a Tamil or because he is a member of a particular social group of young Tamil males from the eastern part of Sri Lanka or for any other connotation of a particular social group.

11    Accordingly, the Tribunal was not satisfied that the appellant had any particular profile such that there was a real chance of serious harm upon his return to Sri Lanka, even having regard to his illegal departure from Sri Lanka and the authorities' awareness that he had applied for asylum in a Western country.

12    The Tribunal found that in the circumstances, upon his return to Sri Lanka the appellant would be questioned at the airport, but did not accept that it would result in him being questioned more thoroughly at the airport such that he would suffer serious harm. The Tribunal accepted that there was a possibility that he would be held for a limited period in remand whilst waiting bail in conditions that could be poor due to overcrowding and unsanitary conditions, but that these were factors which applied to the general population and not specifically to Tamils. The Tribunal was not satisfied that questioning, arrest and the poor conditions in remand and the application of a penalty for illegal departure amounted to systemic and discriminatory conduct as required by s 91R(1)(c) of the Migration Act 1958 (Cth) (which applied at the time).

13    The Tribunal was not satisfied that upon his return to his village the appellant will be interrogated by the CID or abducted or that there is a real chance that he will suffer harm amounting to persecution in Sri Lanka or upon his return to his village, whether because he is a Tamil, a failed asylum seeker or because he left Sri Lanka illegally without proper documentation. This finding is set out at [40] of the Tribunal’s reasons and repeated in its conclusion at [47], and is central to this appeal.

14    Further, the Tribunal acknowledged that preferential treatment is often given to Sinhalese persons in the context of education and employment, but was not satisfied that the appellant would be unable to obtain employment and earn a living upon his return to Sri Lanka.

Proceedings before the Federal Circuit Court

15    The appellant sought judicial review of the decision of the Tribunal by the Federal Circuit Court, which dismissed the application on the basis there was no jurisdictional error.

16    Although the appellant was represented by a solicitor at the hearing, the solicitor did not have instructions and did not make submissions on his behalf.

17    The application before the primary judge contained two grounds. First, it was said that the Tribunal considered the wrong test by applying Refugees Convention grounds to the complementary protection provisions.

18    Second, it was said that the Tribunal failed to take into account an integer of his claim. That integer was harm upon return to the village. By way of particular, the applicant referred to his claim that when people are released and reach their village they are then being interrogated by the CID. He also referred to the admission that DFAT does not monitor returnees and contended that the Tribunal failed to consider that the applicant may suffer serious or significant harm upon return to his home village.

19    The primary judge found that the first ground was not made out. The Tribunal repeated findings made earlier in its reasons in relation to assessing whether the appellant had a well-founded fear of persecution under the Refugees Convention when assessing whether the appellant’s claims satisfied the complementary protection criterion. It did so because those findings were also relevant to the complementary protection criterion.

20    The primary judge found that the second ground was not made out at a factual level as the Tribunal had considered the particularised claims about the prospect of harm upon return to his village and had referred to them in its reasons. In particular, the primary judge referred to both [41] and [47] of the Tribunal’s reasons and referred to the Tribunal’s acknowledgement that although there is some evidence of returnees suffering harm, and there remains a pervasive culture of violence within the Sri Lankan military police and government, those returnees who had suffered harm were overwhelmingly persons who had links with the LTTE. His Honour referred to the Tribunal’s finding that it did not accept any particular political profile with respect to the appellant. His Honour noted that the Tribunal did not accept that upon his return the appellant would be interrogated by the CID or abducted.

The proposed ground of appeal

21    There is only one ground of appeal before me. It is alleged that the primary judge made a jurisdictional error by failing to consider an integer, being that the Tribunal failed to consider the appellant’s claim that people are released and it is when they reach their village that they are interrogated by the CID.

22    The appellant was unrepresented before me.

23    The respondent submits that, properly understood, the appellant’s ground of appeal goes no higher than to disagree with the primary judge’s finding that the Tribunal had in fact considered that matter that had been raised by the appellant before the Tribunal.

24    I accept that submission. As is clear from the summary of the primary judge’s reasoning above, it is clear that his Honour expressly refers to those parts of the Tribunal’s reasons where the issue of alleged harm upon return to the appellant’s village is considered.

25    For completion, I note that at the hearing the applicant submitted (through an interpreter) that he had previously been told by his lawyer that there was no need to provide evidence. He said there were some problems with the interpreting during his entry interview and before the Tribunal. He said there had been recent shootings in his village (in the last two weeks) and he now wanted to provide evidence about that. He said the CID had visited his house and he also wanted to provide some evidence about that.

26    I asked the appellant if his submission was a request to put on fresh evidence. He said that if the court were minded to provide some time, he could provide evidence to the court. I took that submission to be an application for an adjournment to enable the appellant to adduce fresh evidence that he asserted was relevant to the Tribunal’s finding of fact that the Tribunal was not satisfied that upon his return to his village the appellant will be interrogated by the CID or abducted or that there is a real chance that he will suffer harm amounting to persecution in Sri Lanka or upon his return to his village.

27    It was not appropriate that the matter be adjourned for that purpose. The request to put on fresh evidence about alleged incidents in the village and the visit of the CID was in effect a request to tender evidence about country information based on events subsequent to the Tribunal’s decision that falsified the Tribunal’s factual decision. Even had an adjournment been allowed, the appellant would not have been entitled to tender such evidence in this appeal. Post-Tribunal evidence in relation to a question of fact sought to be relied upon for the purpose of inviting the Court to disagree with a factual finding of the Tribunal is not admissible: Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249; SZOIG v Minister for Immigration and Border Protection [2016] FCA 547 [26] – [27]; SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 [56] – [57].

28    For example, in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 the appellant applicant for a protection visa sought to rely on country information developments in relation to the peace process in Sri Lanka since the relevant Tribunal’s decision, in an attempt to demonstrate that the peace process was more likely to fail than the Tribunal had found. The Full Court held that this was impermissible, stating (at [15]) that the appellant’s submission is tantamount to saying that the Tribunal was wrong on the facts and that the Court should correct its factual error. It held that subsequent events could not be used to falsify the Tribunal’s finding.

29    In circumstances where there was no prospect of fresh evidence of the type referred to being admitted, and there was only a generalised assertion about an issue with interpreting and no evidence to that effect, there were no reasonable grounds for an adjournment.

Determination of application

30    The appeal is dismissed. The appellant is to pay the first respondent's costs to be assessed if not agreed.

Associate:

Dated:    20 March 2018