FEDERAL COURT OF AUSTRALIA SXNB v Minister for Immigration and Multicultural Affairs [2006] FCA 710 MIGRATION – appeal from decision of Refugee Review Tribunal affirming delegate's decision to refuse protection visa – fear of persecution not for Convention reason – no jurisdictional error – appeal dismissed. Migration Act 1958 (Cth) SXNB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL SAD 295 of 2005 LANDER J 8 JUNE 2006 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 295 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: SXNB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: LANDER J DATE OF ORDER: 8 JUNE 2006 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The first respondent be described as the Minister for Immigration and Multicultural Affairs. 2. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 295 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: SXNB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: LANDER J DATE: 8 JUNE 2006 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an appeal from an order of a Federal Magistrate given on 4 November 2005 dismissing an application which sought to quash a decision of the Refugee Review Tribunal ('RRT'), affirming the decision of the Minister's delegate not to grant a protection visa to the appellant. 2 The appellant was unrepresented at the hearing before me. 3 The appellant is a citizen of Sri Lanka. He is now 34 years of age. He is single and has never married. He attended school until approximately 12 or 13 years of age. He completed no secondary schooling. The appellant worked as a fisherman from approximately 21 years of age. He worked for various employers in different roles on fishing boats. 4 In order to gain employment as a fisherman, early each morning he would go to the fish market near his village. In February or March 2001, the appellant went to the market and was offered fishing work with a man whom he knew to be a captain of a fishing boat. The appellant assumed this was a normal fishing job where he would be paid a share of the profits upon return from the trip. It was not until he was on that boat, out at sea, when additional passengers came on board, that the appellant discovered the captain was involved in a people smuggling operation. 5 Sometime after the appellant had discovered the nature of the trip, the boat broke down and required mechanical attention. The captain sailed the fishing boat into port in Sri Lanka, some distance from the initial launching point, where it was repaired. Additional passengers were taken on board. The appellant conceded, before the Administrative Appeals Tribunal ('AAT'), that he had an opportunity to leave the boat whilst it was undergoing repairs but he did not do so because he had no clothes or money and he was a significant distance from his home. The AAT accepted that it would have been difficult for the appellant to withdraw at that point. 6 On 18 April 2001 the appellant arrived in Australia by the fishing boat with 32 other people. Upon arrival in Australia he was taken into custody. 7 On 19 September 2001, after pleading guilty, he was convicted of an offence under s 232A of the Migration Act 1958 (Cth) ('the Act'), namely organising the bringing of groups of non-citizens into Australia. He was sentenced to three years and six months imprisonment with a non-parole period of one year and nine months, the sentence to commence from 29 April 2001. 8 After his arrest and before his conviction, the appellant provided no assistance to police or other authorities. However, after his conviction and during his imprisonment, the appellant contacted the Australian Federal Police ('AFP') offering information about the circumstances in which he came to Australia. In particular, he gave the AFP information about the captain of the boat and other men who had organised the voyage from Sri Lanka. The information was subsequently provided to Sri Lankan authorities and led to the imprisonment of the organisers of the voyage. 9 On 28 January 2003 the appellant was released from prison and placed in immigration detention. 10 On 11 April 2003, while in detention, the appellant applied for a protection (Class XA) visa. The Minister's delegate decided the appellant did not qualify for a protection visa because he had not passed through immigration clearance and therefore failed to comply with s 172 of the Act. She refused to grant a temporary protection visa to the appellant because she was of the opinion that the appellant did not meet the criteria for a visa provided for in s 36(2) of the Act. The delegate found that the appellant was not a person to whom Australia had protection obligations because he was excluded from the provisions of the Refugees Convention pursuant to Article 1F(b), in that there was serious reason to consider that he had 'committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee'. 11 On 1 August 2003 the appellant applied for a review of that decision to the AAT. The decision was quashed by the AAT upon the basis that the appellant's involvement in the offence was a modest contribution in the circumstances of the crime. The AAT was of the opinion that, in all of the circumstances, the crime could not be considered a serious non-political crime for the purposes of Article 1F(b) of the Convention where the result would be exclusion of Australia's protection obligations. The decision was remitted to the Minister's delegate with a direction that the appellant was 'not excluded from the provisions of the Convention Relating to the Status of Refugees of 1951 by reason of Article 1F(b) of the Convention'. 12 The delegate summarised the appellant's reasons for his claim that he feared persecution: '● While he was detained at Bunbury Prison, Western Australia, the Australian Federal Police interviewed him and recorded his statement to find out about the involvement of David Rajah, the ring leader in Sri Lanka who organised the boat "Maria Niranjani" to smuggle people to Australia. The Australian Federal Police interviewed him as a result of a letter he sent to them, after he fell out with Captain boat, Niranjan Fernando, because the Captain refused to give him the money he had been promised as part of his services a crew member assisting him to smuggle Sri Lankan's [sic] to Australia; ● At the time of recording the statement the Australian Federal Police told him his statement would be kept confidential. When he questioned the officer about whether his statement would be sent to the Sri Lankan Police, he was advised it would only be for the information of the Australian Federal Police and would not be released to the Sri Lankan authorities. He specifically asked this question as he feared if his statement was used to prosecute David Rajah in Sri Lanka his life would be in danger; ● About one month after giving the statement he found out that officers of the Sri Lankan Police, Criminal Investigation Department (CID) were to visit him at Bunbury Regional Prison. He was seen by Mr D S Y Samarathunge, Senior Superintendent of Police another CID officer, Australian Federal Police and an interpreter; ● Mr Samarathunge asked him whether he made a statement to the Australian Federal Police regarding David Rajah and his people smuggling activities in Sri Lanka. He said no, however, after repeated questioning he had to say yes; ● After he admitted having made a statement to the Australian Federal Police, Mr Samarathunge asked him to make a detailed statement to him confirming David Rajah's involvement in people smuggling. He provided a detailed statement however, he was not provided with a copy even though he asked for one; ● After he made the statement, he saw other members of the crew of the "Maria Niranjani" who were serving prison sentences at Bunbury prison. He told one of the crew about the statement he had provided. This information eventually got back to the captain of the vessel. The captain later scolded him for giving information to the CID and threatened him with serious consequences, including his death if he were to return to Sri Lanka. In addition to the captain and additional four crew members related to the captain threatened him with harm and constantly abused him verbally; ● When the Superintendent of Bunbury prison heard about the treatment he had been receiving from the captain and four crew members, he was transferred to Karnet prison; ● A few months after he provided the statement he learnt from relatives that David Rajah had been charged by the Sri Lankan Police and sentenced to term of imprisonment of seven months. David Rajah lived close to his village and his relatives and friends knew of him; ● During and upon completion of David Rajah's prison sentence, David Rajah told his friends and relatives that his life would not be spared when he returns to Sri Lanka. He has been told by friends and relatives not to return to Sri Lanka as he will either be killed or maimed by David Rajah due to his involvement in sending David Rajah to jail; ● He cannot return to Sri Lanka under this situation. This situation has arisen out of the statement he made to the Australian Federal Police on 26 March 2002, which was subsequently forwarded to the Sri Lankan authorities. As a result of this he believes he has become a refugee surplace [sic] as the Australian Federal Police assured him that his statement would not be sent to Sri Lanka. Despite all the assurances he is now facing serious problems if he returns to Sri Lanka.' 13 The Minister's delegate considered the application for a protection visa in light of the direction from the AAT. On 8 September 2004 the delegate concluded that the grant of a protection visa should be refused as Australia did not owe protection obligations in respect of the appellant. The delegate decided that the appellant had not established that he had a 'well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion'. The delegate found that although the appellant had a fear of harm in the event he was returned to Sri Lanka, his fear was not because of a Convention reason. In her reasons, she said: 'On the basis that the applicant will be targeted by a non-state agent should he return to Sri Lanka, I find that harm feared by the applicant is personal in nature and not for Convention reason (sic). I am also satisfied that should the applicant be targeted by David Rajah, a non-state agent in the event he returns to Sri Lanka any lack of intervention by the Sri Lankan authorities would not be for a Convention based reason. I therefore find, a Convention ground is not the essential and significant reason for harm feared as provided in section 91R of the Migration Act. I therefore find that the applicant does not fear persecution for a Convention reason.' 14 On 10 September 2004 the appellant applied to the RRT for a review of the delegate's decision. The appellant was assisted by a migration agent in the proceeding before the RRT. Written submissions were provided by the agent. The RRT's reasons outline the evidence adduced before the RRT detailing the circumstances surrounding the appellant entering Australia and his fear of persecution. The RRT made the following findings of fact: 'The Tribunal leaves aside some inconsistencies in the Applicant's evidence about his travel to Australia, for example about how long they were at Kirinda for repairs and whether Gerard was beaten up by the organisers of the voyage, and accepts that the Applicant thought he was going on a fishing trip in February or March 2001 and that it was only at sea that he found out that they were transporting people to Australia for money. The Tribunal accepts that the Applicant didn't say much or answer questions when apprehended in Australia and that he pleaded guilty. The Tribunal accepts that the Applicant contacted the AFP in late January 2002 and that he gave evidence to the AFP in March 2002 and soon afterwards to the Sri Lankan CID. The Tribunal also accepts that as a result of this DR was jailed for 7 months in Sri Lanka, and that MNF and his relatives verbally abused and threatened the Applicant in jail because he gave evidence against MNF. The Applicant claims to fear being harmed by MNF, DR and/or by people or the LTTE acting on their behalf because he gave evidence against them to the Australian and Sri Lankan authorities. He claimed that they will harm or kill him because they might want revenge against him for giving evidence and also because they think he might give evidence against them again, if any of their future illegal activities are discovered and prosecuted. However, the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention if he returns to Sri Lanka. Although the Tribunal accepts that the Applicant genuinely fears that he may be harmed or killed by MNF and DR or persons acting on their behalf, if he returns to Sri Lanka, the Tribunal is not satisfied that he fears persecution for a Convention reason. The Tribunal rejects the current adviser's submission that the Applicant fears harm because of a political opinion imputed to him by DR and MNF against people smuggling. This is because the whole emphasis of the Applicant's oral and written evidence is that he gave evidence to the Australian and Sri Lankan authorities about MNF and DR because he was angry that MNF refused to pay him and because he saw them as being responsible for him being in jail in Australia, and his evidence has consistently been that MNF and DR want to persecute him because they want revenge on him for giving evidence against them and to ensure he does not do so again, rather than because of any political opinion against people smuggling they have imputed to him.' 15 Although the appellant did not claim before the RRT that police informers were a particular social group as defined by the Convention, the RRT considered whether the appellant was in a class of persons comprising police informers. The RRT noted that in previous cases police informers had not generally been treated as a particular social group for the purposes of the Convention. In any event, the RRT concluded that, even if police informers were a particular social class, the appellant's fear was not derived from membership of that social class but rather from his personal circumstances. 16 The RRT also considered whether if the appellant were returned to Sri Lanka and was at risk of persecution for a Convention reason (which, of course, was contrary to its own finding), there was adequate state protection. It found: 'In any case, the difficulty the Sri Lankan authorities, in common with many other countries, have in combating organised crime does not indicate that adequate state protection is not available or is denied for a Convention reason.' 17 Accordingly, the RRT decided that the appellant was not owed protection obligations under the Convention and therefore affirmed the delegate's decision not to grant a protection visa. 18 On 13 December 2004 the appellant applied to the Federal Magistrates Court for a review of the RRT decision. The appellant was unrepresented at the hearing before Federal Magistrate Lindsay on 2 June 2005. 19 The Federal Magistrate correctly identified the extent of his jurisdiction by reference to Plaintiff S157 of 2002 v The Commonwealth (2002) 211 CLR 476. 20 The Federal Magistrate concluded that even if police informers were a particular social group within the meaning of the Convention, the RRT had found that the appellant's fear arose not from membership of that group but because of the evidence which he had provided against the two individuals referred to in the RRT decision. The Federal Magistrate said at [24] of his reasons: 'The Tribunal considered carefully the basis of the applicant's apprehensions relating to his return to Sri Lanka and correctly concluded, in my view, that they related to the animosity that would be expressed – even expressed in terms of his being harmed – by those individuals against whom he had given information to the Australian Federal Police and the Sri Lankan CID.' 21 The Federal Magistrate also considered the Tribunal's finding that there was adequate state protection if the appellant should be returned to Sri Lanka and if, contrary to the RRT's finding, the appellant was liable to suffer persecution by reason of a Convention reason. In that regard, the Federal Magistrate found no error in the RRT's reasoning. 22 A notice of appeal to the Federal Court was filed on 8 November 2005. The notice of appeal contained one ground: 'That the Federal Magistrates Court erred in law in holding that the Refugee Review Tribunal had applied the correct test as to what amounts to persecution under s91R of the Migration Act 1958, in that it erred in its application in what amounts to serious harm under s91R of the Migration Act.' 23 The matter came on for hearing on 19 April 2006 when the appellant appeared unrepresented. He had previously engaged a solicitor and migration agent who wrote to my chambers requesting an adjournment of the hearing. The solicitor was advised that the matter would proceed but that an oral application for an adjournment could be made at the hearing. 24 The appellant made an oral application for an adjournment for a period of six months. He said that the adjournment was necessary as there were documents that he needed to collect to properly make his defence. The appellant said he needed to obtain documents that had been lost when he transferred rooms whilst in detention. He said the documents include Sri Lankan newspaper articles which report that the applicant was imprisoned in Australia for 20 years and the statement of a fellow immigration detainee who was deported to Sri Lanka but now resides in Italy. He told the Court that he had attempted in the last two to three months to obtain copies from Sri Lanka. 25 The respondent opposed the adjournment on the basis that the hearing date had been set four and a half months before the hearing. The appellant, it was contended, had had plenty of time to arrange counsel and documents. In addition, it was submitted that as there were no detailed grounds in the application or an outline of argument that would indicate the nature of the error it was difficult to see how the documents described by the appellant were relevant to the case. Further, the respondent contended that the appellant's oral submissions were the first notice that there were any documents relevant to the appellant's case which had not previously been brought to any decision maker's attention. They had not been referred to before the RRT or the Federal Magistrate. Moreover, these documents had not been the basis of any prior request for an adjournment of this hearing. 26 I refused the application for an adjournment and heard the appeal. 27 At the hearing, the appellant said that his life was in danger should he return to Sri Lanka. However, he did not submit that the RRT had made any jurisdictional error. Nor, of course, did he identify that error. The appellant was told that he had to show he was a refugee within the meaning of Article 1A of the Convention. In oral submissions, whilst he admitted he did not fit into any category provided for by the Convention, he still had a fear of persecution. 28 The appellant applied to lead testimony of a witness about the conditions in Sri Lanka and what would happen to him should he return. I refused that application because the evidence could not tend to show any jurisdictional error and would not establish any relevant facts not before the RRT or the Federal Magistrate in making their decisions. 29 The respondent relied on her written submissions. The respondent contended that there was no specific jurisdictional error identified in the notice of appeal. It was submitted that in the absence of a specified jurisdictional error there was no discernable error in the decision of the Federal Magistrate or the RRT. It was contended that the approach taken by the Federal Magistrate in relation to a particular social group was consistent with the approach taken by the High Court in Applicant A v The Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 and the Full Court of the Federal Court in Ram v Minister for Immigration and Ethnic Affairs & the Refugee Review Tribunal (1995) 57 FCR 565. The thrust of the respondent's submissions was that, on the evidence before the Tribunal, the decision it made was open to it and there was no jurisdictional error. 30 The appellant did not provide any written submissions at the hearing. However, I granted the appellant leave to produce written submissions in his native language within 28 days of the hearing. In due course, the appellant provided a 50 page written submission, 95 per cent of which was written in his own language. I relisted the matter so that the submission could be read to the Court in the presence of the respondent's counsel. The appellant did not appear. An interpreter, Mr Aranda Eriyagama read the submission to me in English. Unfortunately, in the main, it was irrelevant. The submission, which included material written in 2003 and 2004, mainly addressed the appellant's time in prison and in detention, and the troubles and deprivations he suffered in both places. The submission included a very long letter to the Department seeking redress of a number of grievances and requesting various actions. None of those matters were relevant to this application. 31 The appellant did repeat his previous complaint that he was in his present predicament because the Australian Federal Police released to the Sri Lankan police the contents of a statement and later he was obliged to give a further statement to the Sri Lankan police. He also blamed the Australian Government for his plight who he said were attacking people who brought other people to Australia to win an election. He said: 'I was made a person without a country by the Australian Government'. 32 He said in his most recent written submission that he feared persecution for a Convention reason, being the membership of a division of society. By that he meant membership of a particular social group. He said he feared persecution by those who organised people to come to Australia illegally. He named two persons in the Sri Lankan Government who he said organised people to come to Australia and who persecuted those who interfered with their activities. He said that MF and DR were supporters of those corrupt Ministers and associates of them. 33 He said that because he had given evidence against people of that kind the Australian Government should have sympathy and allow him to live in Australia. He said the Australian Government has, because of the evidence which he gave, a responsibility to provide him with protection either under the Convention or under the Witness Protection Act. 34 This appeal is to determine whether the Magistrate was right to find that the RRT had not committed jurisdictional error in the way in which it went about its statutory obligations. The matters raised by the appellant in his written submissions are not relevant to that exercise. I have to determine whether jurisdictional error was committed on the basis of the evidence before the RRT and in the manner in which the RRT discharged its statutory obligations. 35 In my opinion, this appeal must be dismissed. The appellant, of course, is only entitled to claim refugee status if he can establish that: '[O]wing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.' 36 The RRT accepted that the appellant genuinely fears that if he were returned to Sri Lanka he may be harmed or killed by the two persons upon whom he has informed or, if not by them, persons acting on their behalf. However, at the same time, the RRT concluded that that fear was not a fear for a Convention reason in that the fear was not 'for reasons of race, religion, nationality, membership of a particular social group or political opinion'. The fear arose because the appellant was an informer. He became an informer not for any Convention reason but because he believed the two persons upon whom he informed were the causes of him being imprisoned in Australia. Thus, the RRT found that the appellant was likely to be persecuted because he was a police informer and because those persons upon whom he had informed would want to exact revenge. 37 The RRT considered whether or not there was a particular social group in Sri Lanka of police informers. It found, however, that even if there were such a social group (upon which it made no finding) the appellant was likely to be persecuted not for reason of membership of that social group but because the two persons upon whom he had informed would wish to exact revenge. 38 Those findings were fatal to the appellant's case. The RRT, however, went further. It was not prepared to find that there was no adequate state protection available if the appellant were returned to Sri Lanka and was liable (contrary to the RRT's findings) to be persecuted for a Convention reason. That further finding was also fatal to the appellant's case. 39 The appellant needs to demonstrate jurisdictional error on the part of the RRT. In my opinion, no such error has been demonstrated. Clearly, there was evidence upon which the RRT could make the findings to which I have referred. It asked itself the right questions. It answered those questions by reference to evidence which was before it. No jurisdictional error has been demonstrated. 40 The appeal must be dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 8 June 2006 Counsel for the Appellant: The Appellant appeared in person on 19 April 2006. The Appellant did not appear on 30 May 2006. Counsel for the Respondent: Mr M Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 19 April 2006; 30 May 2006 Date of Judgment: 8 June 2006