FEDERAL CIRCUIT COURT OF AUSTRALIA
MZAJK v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1277	

Catchwords: 
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – application dismissed.	

Legislation:
Migration Act 1958 (Cth), ss.91R(1)(a), 91R(1)(c), 91R(2)(a)
Immigrants and Emigrants Act No.31 of 2006 (Sri Lanka)
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees	

SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
GJ and Others [2013] UKUT 319	

Applicant:	MZAJK	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Refugee Review Tribunal	

File Number:	MLG 1571 of 2014	
 
Judgment of:	Judge Hartnett	

Hearing date:	21 April 2015	

Delivered at:	Melbourne	

Delivered on:	19 May 2015	

REPRESENTATION
The Applicant:	In person	

Counsel for the respondents:	Mr Brown	

Solicitors for the respondents:	Australian Government Solicitor	

ORDERS
(1)	The application is dismissed. 
(2)	The Applicant pay the First Respondent’s costs fixed in the sum of $6,825. 
(1)	
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE	
MLG 1571 of 2014
MZAJK	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent

Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	By Amended Application filed 20 April 2015, the Applicant seeks an order that the decision of the Refugee Review Tribunal (‘Tribunal’) of 30 June 2014, which affirmed a decision of the Delegate of the First Respondent (‘the Delegate’) made 11 January 2013, not to grant the Applicant a Protection (Class XA) visa (‘the protection visa’), be quashed, and further that a constitutional writ in respect of such decision issue requiring the Tribunal or the First Respondent to determine the Applicant’s application according to law.  The grounds of the application are as follows:- 
	“1. The tribunal denied me procedural fairness because they didn’t give me a fair hearing. 
	2. The tribunal failed to properly consider all of my claims.  
	3. The tribunal didn’t give me an opportunity to comment on an issue that was in dispute. 
	4. The tribunal used the wrong legal test.  
	5. The tribunal erred in failing to discern legal error in circumstances where the second respondent applied the wrong test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and/or asked itself the wrong question.
	Particulars
	By undergoing a qualitative assessment of the nature and degree of the harm experienced by the applicant when being remanded into custody by the authorities at the airport, the Tribunal failed to apply the reasoning of His Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [30] and [45].”
2.	The First Respondent seeks the application be dismissed and the Applicant pay the First Respondent’s costs of the proceedings arguing the decision under review is not affected by jurisdictional error. 
3.	The First Respondent filed a Court Book on 8 December 2014 and its contents are in evidence before the Court. Also filed were Contentions of Fact and Law, on 25 March 2015.  The Applicant has filed Submissions. They do not however advance the Applicant’s case beyond the restatement of the single particularised ground in his application.  
History
4.	The Applicant is a Sri Lankan national of Tamil ethnicity, who lived in Udappu, Puttalam, Sri Lanka until 1 May 2012 when he left Sri Lanka illegally by boat.  He was interviewed by a Department of Immigration and Citizenship (as it then was) official on 12 June 2012 and lodged his protection visa application on 5 August 2012, attaching a Statutory Declaration detailing his claims.  The Delegate interviewed the Applicant, who was assisted by a registered migration agent/ authorised recipient (‘migration agent’) on 12 August 2012, and made a decision to refuse to grant the visa on 4 October 2012.  The Applicant applied for a review of this decision to the Tribunal. On 10 October 2012, a hearing was conducted over two days. The Tribunal affirmed the Delegate’s decision on 11 January 2013.
5.	An application for judicial review was filed with this Court and that application was remitted to the Tribunal, by consent, for redetermination according to law in December 2013, as the first Tribunal had failed to give consideration to the Applicant’s then status as a minor when determining whether he was owed complementary protection.  The matter was reheard. The second Tribunal (differently constituted), invited the Applicant (by correspondence of 2 June 2014) to appear before it to give evidence and present arguments relating to the issues arising in the Delegate’s decision under review.  The date of hearing was 19 June 2014 and it was noted that an interpreter, fluent in the Tamil and English languages, would be available to assist the Applicant. 
6.	The hearing of 19 June 2014 commenced and was then adjourned for further hearing to 24 June 2014.  Over the two days of hearing of 19 and 24 June 2014, the Applicant was represented in relation to the review by his migration agent.  On 20 June 2014, the Tribunal forwarded country information to the Applicant’s migration agent.  That country information dealt with the human rights and security situation for Tamils in Sri Lanka since 2009; the treatment of people suspected of being involved or associated with the Liberation Tigers of Tamil Eelam (‘LTTE’); the penalties for illegal departure and treatment of returnees; and with ‘White Van’ abductions. 
7.	The Tribunal affirmed the decision under review on 30 June 2014. The Applicant filed his Application for judicial review of this second Tribunal decision on 1 August 2014.
8.	The claims of the Applicant and the findings of the Tribunal upon the second Tribunal hearing are accurately summarised in the First Respondent’s Contentions of Fact and Law filed on 25 March 2015 as follows:-
a)	in his Statutory Declaration of 5 August 2012, the Applicant claimed to fear persecution by reason of his ethnicity and his family’s suspected LTTE association.  His father had worked as a fisherman some 200 kilometres from the family home and was away for periods of three to six months.  These factors led to him being suspected of LTTE connections during the civil war period and the Criminal Investigations Department (‘CID’) and/or the Army came to the family home on five or six occasions to interrogate the Applicant’s mother about her absent husband’s activities. Family members, including the Applicant, were struck and their clothes ripped;
b)	the Applicant’s father had been threatened that he would be killed on account of an alleged association with the LTTE.  In 2007, he had been kidnapped by the Army and the CID, detained and tortured for three months.  After his release, the Applicant’s father would hide because he was continually in fear of being killed;
c)	unable to find the Applicant’s father, the authorities threatened to kill the Applicant’s older brother who was forced to go into hiding.  The authorities then began to threaten the lives of the Applicant and his younger brother. This went on for five years, involving constant threats and beatings;
d)	the Applicant feared that should he return to Sri Lanka, he would be tortured and killed.  His father had been kidnapped and tortured in 2007 and the same would happen to him as a suspected supporter of the LTTE.  Given his Tamil ethnicity, his extended absence from home would create increased suspicion that he had been involved with the LTTE;
e)	in addition to his ethnicity and imputed support for the LTTE, the Applicant also claimed to fear persecution by reason of his membership of a particular social group, namely, failed returned asylum seekers (from the West); 
Findings
f)	the Tribunal accepted the Applicant’s claims as to his and his family’s past experiences but found, based on country information, that the situation in Sri Lanka in 2014 had changed so significantly that having regard to the Applicant’s profile, there was no basis for government actors to impute to him a profile of being, or being related to, a person with links to the LTTE or to any of the other risk profiles identified by the United Nations Refugee Agency (‘UNHCR’);  
g)	the Tribunal relied in particular on a UK Upper Tribunal decision of GJ and Others [2013] UKUT 319, in determining what the Sri Lankan authorities would consider to be bases for taking an adverse interest in returnees;
h)	only those thought or known to be supporting Tamil separatism or working against the Government were of interest to the authorities.  There was no presumption of inclusion of Tamils as persons of interest with the authorities based on ethnicity;
i)	the United Nations High Commissioner for Refugees (‘UNHCR’) 2012 guidelines identified categories of persons who may be in need of international refugee protection based on a person having certain types of links to the LTTE that might attract adverse attention.  The only possible type of link potentially relevant to the Applicant was “persons with family links or who are dependent on or otherwise closely related to” persons who were LTTE activists;
j)	the Tribunal found that the Applicant’s father may have been suspected of LTTE links before 2009 but the authorities had detained his father in 2007 for three months and released him again and his father had not been detained again since then.  His brother had been briefly detained in 2010 but promptly released.  The Tribunal concluded that the Applicant and his family were not of any particular interest to the authorities at any time after his brother’s brief arrest in 2010;
k)	the Tribunal rejected the Applicant’s account that he had been sought by the CID in the post-civil war period or that his name or those of his family members were on a watch list or a stop list kept by the authorities;
l)	the Tribunal found that the Applicant was a young Tamil male from Udappu who is “otherwise unremarkable” and that there was no basis for the authorities to impute to him a profile of being or being related to a person with links to the LTTE; 
m)	country information was relied upon in rejecting the Applicant’s assertion that he would be imputed with a risk profile on account of his membership of one or a number of the particular social groups of being an ethnic Tamil, a Tamil male, a young Tamil male, a Tamil from a former LTTE-controlled area, a Tamil who departed illegally and unsuccessfully sought asylum abroad or in a Western country, or a person possessing any combination of these attributes;
n)	the Applicant’s assertion that a “shadow” war continues against Tamils is addressed by the Tribunal as “not generally borne out by country information” and that those exposed to such risks have a profile not shared by the Applicant; 
o)	the Applicant had left Sri Lanka illegally and would be subject to interview by several law enforcement and security agencies upon return.  However, as he did not have a profile that would attract adverse interest or family links with LTTE activists, the Tribunal found that while he might expect a short period of detention there was not a real chance that he would suffer either serious harm or significant harm upon return by reason of being held, charged, processed and penalised for his illegal departure; and
p)	the Tribunal noted that the “real risk” test for complementary protection claims had the same standard as the real chance test applicable to Refugee Convention grounds.  The Tribunal adopted the same reasoning that had led it to conclude that there was not a real chance of the Applicant suffering serious harm for any reason in reaching their conclusion that there were no substantial grounds for believing that there is a real risk that the Applicant will suffer significant harm, such that the Applicant is owed protection under s.36(2)(aa) of Migration Act 1958 (Cth) (‘the Act’). 
Consideration
9.	In the conduct of the hearing, and in the intervening days between the two hearing dates, the Tribunal took great care to put information to the Applicant and to identify the conclusions that might be drawn from it. The Applicant was invited to provide responsive comments. In particular, the Tribunal put to the Applicant the conclusions that it might draw from country information. Some of that country information – and that being the most current – was provided to the Applicant’s migration agent the day after the first two hearing days, so that the Applicant could consider it.  There is nothing on the evidence before the Court to suggest that the Applicant was not afforded procedural fairness.  
10.	The Tribunal made findings of fact in respect of each of the Applicant’s varied claims.  Such findings of fact were open to the Tribunal on the materials and evidence before it.  The findings of the Tribunal were neither unreasonable nor irrational.  The Tribunal correctly identified the relevant law, the test to be applied by it, and proceeded to apply such law and tests correctly.  
11.	The Tribunal’s conclusion that complementary protection obligations did not arise was open to it on the evidence put before it by the Applicant, and on the country information perused by it, to which it gave some weight.  Indeed, the Tribunal appended, as part of the Decision Record dated 30 June 2014, some of that country information.  
12.	The Tribunal addressed the likely detention of the Applicant, given his illegal departure from Sri Lanka, and considered this issue in the country information canvassed by it.  It noted that such detention would be the product of the application of the Immigrants and Emigrants Act No.31 of 2006 (Sri Lanka) (‘Immigrants and Emigrants Act’) a law of general application, which made it an offence to depart Sri Lanka from any place other than an approved port of departure and to depart without valid travel documents.  The British High Commission in Colombo in January 2012 had confirmed that such procedures were being applied identically to all deportees and returnees and were therefore not being administered in a discriminatory manner.  The Tribunal correctly noted that such a temporary period of detention would not be, essentially and significantly, for a Refugees Convention reason, pursuant to s.91R(1)(a) of the Act.  It would not be for a period longer than that experienced by any other returnee; and it would not involve subjecting the Applicant to any treatment involving systemic or discriminatory conduct, pursuant to s.91R(1)(c) of the Act.
13.	The Tribunal’s finding that the period of detention while the Applicant’s identity and method of departure was being established, would be enforced under a law of general application, and would be for no longer than any other returnee, provided independent bases for the Tribunal’s finding that the temporary period of detention did not amount to persecution under s.91R of the Act. The Applicant’s claims had thus no Refugee Convention nexus.  
14.	It is clear that in the Tribunal finding that the Immigrants and Emigrants Act was a law of general application and not applied for any Refugee Convention reason, and not applied discriminatorily, that the alleged error in reliance upon WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 fails.  Furthermore and importantly, in the decision of SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, Robertson, Griffiths and Mortimer JJ held that the decision of North J in WZAPN v Minister for Immigration and Border Protection was wrongly decided because it did not correctly decide the construction of s.91R(2)(a) of the Act.
15.	In SZTEQ v Minister for Immigration and Border Protection, Robertson, Griffiths and Mortimer JJ stated:-
	“In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s 91R(1)(b) and Art 1A(2).”
16.	The Full Court of the Federal Court of Australia went on to say that: -
	“… even if there was no error in his Honour's examination of ss 91R(1) and (2) and the Convention concept of persecution by reference to “international human rights standards" (see his Honour's reasons at [43]), an issue which need not be determined in this appeal, contrary to his Honour's reasoning, neither those standards, nor the jurisprudence and commentary about those standards in refugee decision-making supports the proposition that any deprivation of liberty must constitute serious harm for the purpose of the Convention.”
17.	In essence, what the Tribunal did in a very thorough decision in this matter, reached after two days of hearing, was to accept many of the facts put before it by the Applicant, whom it found to be a responsive and thoughtful witness; to give considerable weight to country information then available to it when assessing the claims of the Applicant; and to apply a correct construction of s.91R(2)(a) of the Act.
18.	No jurisdictional error attends the decision of the Tribunal. The application is dismissed and costs follow the event.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:  

Date:  19 May 2015