FEDERAL COURT OF AUSTRALIA SZSYH v Minister for Immigration and Border Protection [2016] FCA 1480 Appeal from: SZSYH v Minister for Immigration & Anor [2016] FCCA 1727 File number: NSD 1219 of 2016 Judge: NICHOLAS J Date of judgment: 31 October 2016 Legislation: Migration Act 1958 (Cth), s 36(2) Date of hearing: 31 October 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 17 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Keevers of Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS NSD 1219 of 2016 BETWEEN: SZSYH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE OF ORDER: 31 October 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from Transcript) NICHOLAS J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia (Judge Street) given on 11 July 2016. By that judgment, the primary judge dismissed the appellant's amended application for judicial review of a decision of the Refugee Review Tribunal (as it then was) ("the Tribunal") dated 17 May 2013, affirming a decision of a delegate of the first respondent ("the Minister") not to grant a protection (Class XA) visa pursuant to s 36(2) of the Migration Act 1958 (Cth) ("the Act"). 2 The appellant is a male citizen of Sri Lanka. He applied for a protection visa on 30 August 2012. In his application, he claimed to fear persecutory harm in Sri Lanka at the hands of the Sri Lankan authorities because of his actual or imputed political opinion in support of the Liberation Tigers of Tamil Eelam ("LTTE") or against the government, his Tamil ethnicity and his membership of a particular social group consisting of failed asylum seekers who departed Sri Lanka illegally. 3 On 8 October 2012 a delegate of the Minister refused to grant the appellant a protection visa. The appellant applied to the Tribunal for a review of the delegate's decision on 11 October 2012. The appellant gave oral evidence and presented oral arguments before the Tribunal on 20 December 2012 with the assistance of a migration agent. 4 The Tribunal was not satisfied there was a real risk the appellant would suffer serious harm upon return to Sri Lanka by reason of his ethnicity, his real or imputed political opinion or his membership of a particular social group. Nor was it satisfied that there was a real risk that he would suffer significant harm by reason of his membership of a particular social group consisting of failed asylum seekers. The Tribunal was not satisfied the appellant met the criteria set out in section 36(2)(a) or 36(2)(aa) of the Act. 5 The appellant's written statement of claim made numerous claims including, most relevantly, that the appellant feared that if he were to return to Sri Lanka then, "because he left illegally", he would "disappear or be interrogated after [going] through the Colombo airport": see appellant's written statement dated 30 August 2012 at [11]. 6 The Tribunal said at [35]-[37]: [35] The information before the Tribunal, including the DFAT reporting cited above, indicates that under standardised procedures applying to all cases, regardless of their ethnicity or the circumstances in which they left the country, returnees are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service (SIS) and the airport Criminal Investigation Department (CID) These processes involve police and security clearances, including checks with the person's local police station and may take some hours. If they reveal outstanding arrest warrants for prior criminal offences, or if there are alerts against the person's name in immigration watch-lists, they may be subject to further questioning. Additional questioning would also be involved if the person were of security. interest or if there were evidence of involvement in people smuggling. On the basis of this information I accept that the Applicant would be subjected to such processes on return. I am not satisfied that the fact of his being questioned at the airport, even for extended periods, could reasonably be characterized as harm at any level or that he would be subjected to any other form of mistreatment there. [36] The information also indicates that under tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of the law on immigration and emigration are arrested at the airport and brought before a count to apply for bail. Bail is routinely given on the accused's own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison, possibly for some days, until a bail hearing is available. Conditions in remand have been described in media reports […]as being overcrowded and unsanitary, although there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The penalties eventually imposed on returnees by the courts for illegal departure take the form of fines ranging up to Rs 100,000. [37] Taking together the country information and my findings about the Applicant's personal circumstances I am not satisfied that being questioned at the airport on arrival, detained for a few days in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined could reasonably be seen as constituting serious harm amounting to persecution as contemplated in s.9IR(l)(b) of the Act. I am not satisfied there is a real chance that he would suffer serious harm, at these or any subsequent points, because of his membership of the particular social group consisting of failed asylum seekers, whether or not this entity includes those who left the country unlawfully. 7 It is apparent that the Tribunal was not satisfied that the appellant would suffer any significant harm upon return to Sri Lanka either at the airport or in detention while awaiting a bail hearing. 8 Other matters raised by the appellant in support of the application to the Tribunal included an incident that occurred in late 2006 when the appellant was arrested, questioned and detained for three days by Sri Lankan authorities. Although the Tribunal accepted that this incident occurred, it was not satisfied that it had the financial consequences the appellant claimed, ie. requiring him to close his shop permanently and leaving him unemployed for a lengthy period, followed by another period of working at greatly reduced wages. The Tribunal rejected these claims on the basis that they were implausible. 9 The Tribunal also accepted that the applicant's claim that his family home was subjected to a search by the police in February 2010, but did not accept this was evidence that the appellant was an object of suspicion due to any LTTE involvement or for any other reason. The Tribunal was not satisfied that the search was anything more than routine or that it was directed at the appellant. In relation to these matters, the Tribunal concluded at [24]: The Applicant does not claim to have belonged to the LTTE, to have been involved in any material way with it or even to have supported its aims or policies. Nor does he claim to have been politically active in any way in Sri Lanka or to have developed any form of political profile in favour of Tamil independence or against the current government. Taking together all the information before the Tribunal on this aspect of his claim for Australia's protection I am not satisfied with the possible exception of a period of three days in 2006 when he was arrested and detained by the police, he has ever been imputed with a political opinion in favour of the LTTE or its aims or against the government. Nor am I satisfied there is any other way in which such a political opinion has been imputed to him. This being the case, I am not satisfied that he would be harmed for such a reason if he were to return to Sri Lanka. 10 The appellant sought judicial review of the Tribunal's decision by application filed on 19 June 2013. He subsequently filed an amended application and included the following ground of review: The [Tribunal] has not considered an integer or aspect of my claim that I could be held for some months at the airport and degrading conditions in prison for months to me. (Errors original) 11 The ground of review set out in the amended application did identify what would be, were it otherwise accurate, a jurisdictional error, that is to say, a failure to consider an integer or aspect of the appellant's claims. The difficulty with the ground of review is, however, that it does not accurately reflect the appellant's actual claims, all of which were considered and rejected by the Tribunal. 12 The hearing before the primary judge took place on 11 July 2016. According to the primary judge's reasons, his Honour explained to the appellant that the question to be decided was whether the Tribunal's decision was affected by a relevant legal error. The primary judge dismissed the amended application on the basis, according to his Honour, that "it fails to identify any jurisdictional error". 13 The sole ground of the appeal is as follows: His Honour erred in law in failing to find that the Appellant is a refugee pursuant to s 36 of the Migration Act Particulars The learned Judge failed to consider important aspects of the Appellant's claims. 14 The ground of appeal appears to be a complaint that the primary judge did not undertake a full merits review of the Tribunal's decision not to grant the appellant a protection visa. In the course of some short oral submissions in support of his appeal, the appellant also addressed the merits of his application. He did not seek to identify any jurisdictional error on the Tribunal's part nor any error of law on the primary judge's part. 15 In respect of the application for judicial review before the primary judge, his Honour said at [5]-[6]: [5] The Tribunal found that it was not satisfied there was a real chance the applicant would suffer serious harm at the time of his return or any subsequent points because of his membership of a particular social group consisting of failed asylum seekers, whether or not this entity included those who left the country unlawfully. The Tribunal was not satisfied that the applicant would be denied a right to livelihood and denied access to basic services. The Tribunal was not satisfied there was a real chance that on the return of the applicant to Sri Lanka, he would suffer serious harm amounting to persecution for the Convention reasons of his Tamil ethnicity, his real or imputed political opinion or his membership of a particular social group. [6] The Tribunal found that it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason should he be returned to Sri Lanka now or in the reasonably foreseeable future. The Tribunal was not satisfied the applicant was a refugee. The Tribunal considered the applicant's claims and evidence in relation to complementary protection. The Tribunal found that it was not satisfied there are substantial grounds to believe that as a necessary and foreseeable consequence in the applicant being removed from Australia to Sri Lanka there is a real risk he would suffer significant harm within the terms of s.36(2)(aa) of the Migration Act 1958. The Tribunal found that the applicant failed to meet the criteria under s.36(2) of the Migration Act 1958, and affirmed the decision of the delegate. 16 Paragraphs [12]-[14] of the primary judge's reasons are of particular relevance to the ground of review referred to in the amended application. The primary judge said at [12]-[14] of his reasons: [12] From the bar table, the applicant maintained that the fears he had earlier expressed remain, and that he had no family other than his mother in Sri Lanka and maintained that he would face problems if returned to Sri Lanka. This invites an impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error. In relation to the ground identified in the amended application, it is apparent that the Tribunal made findings in relation to the questioning that the applicant may face on his return to Sri Lanka, and that he would be brought before a Court and be able to apply for bail. [13] The Tribunal identified that bail was routinely granted on the accused's own reconnaissance, although a family member is also required to provide surety. The Tribunal identified the possibility that the applicant may be placed in a section of the Negombo Prison possibly for some days until the bail hearing was available. It is apparent that the Tribunal took into account those circumstances both in relation to the applicant's claim concerning s.36(2A) as well as complementary protection in s.36(2)(aa), and made adverse findings in relation to the applicant's claims. [14] The Tribunal did not accept that the applicant would be held in prison for some months, and found that he would be placed in remand for a relatively short period and found that the relevant treatment was not one in which the Tribunal was satisfied that it could be reasonably said to amount either to serious harm for a Convention reason or significant harm in terms of the provisions of Australia's complementary protection arrangements. Accordingly, there is no substance in the proposition that the Tribunal had failed to consider an integer of the applicant's claim in respect of the potential detention of the applicant in respect of his unlawful departure and his return to Sri Lanka. 17 The question of what might happen to the appellant upon his return to Sri Lanka as a result of him being a failed asylum seeker who departed the country illegally was a matter that was expressly addressed and considered by the Tribunal. Other claims made by the appellant were also addressed and considered by the Tribunal. Having considered the appellant's claims, the Tribunal was not satisfied that there was a real chance that the appellant would suffer any serious harm amounting to persecution for a Convention reason due to his Tamil ethnicity, any actual or implied political opinion or his illegal departure. Nor was it satisfied that the appellant would suffer any significant harm if he was required to return to Sri Lanka as a failed asylum seeker who departed the country illegally. In the circumstances, like the primary judge, I am not satisfied that there was any jurisdictional error by the Tribunal, including that asserted in the amended application. I am satisfied the primary judge was correct to dismiss the amended application. The appeal must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 7 December 2016