QLN 065 v Republic [2018] NRSC 14; Refugee Appeal Case 6 and 7 of 2017 (22 March 2018)

IN THE SUPREME COURT OF NAURU

AT YAREN

Case Nos. 6 and 7 of 2017

IN THE MATTER OF an appeal against a decision of the Refugee Status Review Tribunal TFN T1/00231 and T15/0232, brought pursuant to s 43 of the Refugees Convention Act 2012

BETWEEN

QLN 065 Appellants

QLN 067

AND

THE REPUBLIC

Respondent

Before: Freckelton J

Appellants: Christine Melis
Respondent: Catherine Symons

Date of Hearing: 5 February 2018

Date of Judgment: 22 March 2018
CATCHWORDS
Appeal – refugee status – complementary protection – torture – interrogation – APPEAL DISMISSED.

JUDGMENT

1. This matter is before the Court pursuant to section 43 of the Refugees Convention Act 2012 (“the Act”) which provides that:
   

(1) A person who, by a decision of the Tribunal, is not recognised as a refugee may appeal to the Supreme Court against that decision on a point of law.

(2) The parties to the appeal are the Appellant and the Republic.

...

2. A “refugee” is defined by Article 1A(2) of the Convention Relating to the Status of Refugees 1951 (“the Refugees Convention”), as modified by the Protocol Relating to the Status of Refugees 1967 (“the Protocol”), as any person who:
   

“Owing to 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 to, 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 to or, owing to such fear, is unwilling to return to it ...”

3. Under s 3 of the Act, complementary protection means protection for people who are not refugees but who also cannot be returned or expelled to the frontiers or territories where this would breach Nauru’s international obligations.
   
4. The determinations open to this Court are defined in s 44(1) of the Act:
   

(a) an order affirming the decision of the Tribunal;

(b) an order remitting the matter to the Tribunal for reconsideration in accordance with any directions of the Court.

5. The Refugee Status Review Tribunal (“the Tribunal”) delivered its decisions in respect of both QLN 065 and QLN 067 on 4 December 2016 affirming the decisions of the Secretary of the Department of Justice and Border Control (“the Secretary”) on 11 October 2015, that the Appellants were not recognised as refugees under the 1951 Refugees Convention^[1] relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”), and are not owed complementary protection under the Act.
   
The Appellant filed a Notice of Appeal on 16 December 2016 and an Amended Notice of Appeal on 27 January 2017.

BACKGROUND

7. The First Appellant is a married man from Sri Lanka of Tamil ethnicity and Christian religion. The Second Appellant is the First Appellant’s wife and is also a Christian Tamil. The Appellants have two children (QLN 064 and QLN 066). The First Appellant’s application for refugee status or complementary protection included the Second Appellant, and their two children, as dependents. Likewise, the Second Appellant’s application included the First Appellant, and their two children, as dependents. The Appellants lived in Tamil Nadu, India, from December 2006 until 13 June 2014 as refugees.
   
8. The Appellants claim a fear of harm based on their Tamil ethnicity, their origins from the North of Sri Lanka and membership of the particular social groups of “failed asylum seekers”, “Tamils who have been outside of Sri Lanka for a significant period of time”, “family members of persons who supported the Liberation Tigers of Tamil Eelam” (“LTTE”), and, in the case of the Second Appellant, “women returnees from Northern Sri Lanka”. The Appellants also claimed to fear harm from the Sri Lankan Army (“SLA”) and anti-LTTE groups on the basis that the First Appellant drove trucks for the LTTE from 2002 to 2005. They said that this gave rise to an imputed political opinion as LTTE supporters.
   
9. The Appellants and their children fled India for Australia in June 2014, arriving in Australia on 27 July 2014. They were transferred to Nauru on 2 August 2014.
   

INITIAL APPLICATION FOR REFUGEE STATUS DETERMINATION

10. The Appellants attended Refugee Status Determination (“RSD”) interviews on 5 December 2014. The First Appellant said that he lived in Atchuveli until 1992, when his family fled to Kilinochchi for safety. He lived in Kilinochchi until 1998, when he fled to Mannar to escape being forcibly recruited for the LTTE.^[2] The Second Appellant said she was born in Pesalai, Mannar, and married the First Appellant in Mannar in 2000.^[3]
    
11. The First Appellant said that on a number of occasions the Sri Lankan Army (“SLA”) interrogated him about his identity card, which displayed his Kilinochchi residence. In 2001, following a clash between the SLA and LTTE, the First Appellant was arrested, detained and severely beaten by the SLA.^[4]
    
12. To escape harassment and look for work, the Appellants moved to Vavuniya in 2001. From 2002 to 2005, the First Appellant worked as a van driver for the LTTE, transporting LTTE members from one place to another. Due to this, he asserted that the SLA regarded him as a supporter of the LTTE. From 2005 to 2006, the First Appellant worked for a private company in Vavuniya, although he was forced to drive on occasion for the LTTE to support himself and his family. In May 2006, the Criminal Investigation Department (“CID”) came to the Appellants’ house looking for the First Appellant. A few days later, four or five Tamil people were arrested and killed. About 15 days later, the People’s Liberation Organisation of Tamil Eelam (“PLOTE”) returned to the Appellants’ home while the First Appellant was in Colombo. The Second Appellant contacted him, and the Appellants met at a bus station in Vavuniya. The Appellants fled to Mannar for two to three months to organise travel.^[5]
    
13. The Secretary found that the Appellants’ accounts of their profiles, and experiences leading up to their fleeing from Sri Lanka were spontaneous, detailed, consistent and plausible. The Secretary therefore accepted that:
    
    • In 2001, the First Appellant was arrested and beaten by the SLA and released;
    • The First Appellant drove lorries for the LTTE between 2002 and 2005, and this resulted in him becoming known to the SLA; and
    • Anti-LTTE groups came to the Appellants’ home on two occasions in 2006; and
    • The First Appellant drove two LTTE cadres involved in humanitarian work during the peace talks period.^[6]
      
14. However, due to discrepancies in the RSD Interviews, the Secretary did not accept that:
    
    • The First Appellant was employed directly by the LTTE between 2002 and 2005; rather that his boss was paid by the LTTE to provide a vehicle and driver (the First Appellant) to the LTTE; or
    • The First Appellant was not forced to drive lorries for the LTTE. Rather he chose on some occasions to perform this work to support his family.^[7] [CHECK DOUBLE NEGATIVE]
      
15. While accepting that the First Appellant was beaten and detained in 2001, the Secretary noted that he was released on the same day, and was not subject to any further harm arising from the incident.^[8] The First Appellant also did not transport active LTTE cadres or prohibited items in his lorry, and had not been involved with the LTTE, or in any Tamil separatist activity, since departing Sri Lanka.^[9] The Second Appellant also had not been involved with any political organisation.^[10] The Secretary therefore considered that the Appellants did not have adverse profiles that would expose them to a reasonable possibility of harm if returned to Sri Lanka, whether from the SLA or any other anti-LTTE groups.^[11]
    
16. The Secretary noted that, while Tamils continue to experience discrimination in accessing public services and institutions, the situation for them has improved significantly since 2009, and Tamils are no longer systematically targeted because of their race.^[12] Guidelines issued by the United Nations High Commissioner for Refugees (“UNHCR Guidelines”) provide that there is no longer a presumption of eligibility for refugee status for Sri Lankans of Tamil ethnicity, although persons suspected of links with the LTTE may still require protection. The numbers of LTTE supporters or members arrested or detained have fallen significantly, and authorities generally only target those considered to be a destabilising threat in post-conflict Sri Lanka.^[13] Given the Appellants did not have adverse political profiles, the Secretary concluded that the likelihood of their being exposed to harm upon return was low.
    
17. In relation to the Appellants’ claim to fear harm on account of being failed asylum seekers, the Secretary noted that the UNHCR has monitoring programs as part of which officials visit returnees in their homes, and that, in general, most returnees found repatriation and reintegration to be “a positive experience”.^[14] While the Appellants may have committed offences under the Immigration and Emigrants Act by departing Sri Lanka irregularly, those charged are quickly brought before a magistrate and may have a fine imposed that is not unreasonable.^[15] While there are isolated reports of returnees from the United Kingdom being mistreated, other country information and the UNHCR Guidelines do not suggest that failed asylum seekers returning to Sri Lanka are at risk of persecution.^[16] In light of this, and the Appellants’ lack of any adverse profile, it was unlikely the Appellants would be subject to anything more than standard administrative screening, and there was therefore no reasonable possibility of the Appellants facing harm on this basis.^[17]
    
18. In relation to the Second Appellant’s fear of harm as a member of the particular social group of “Tamil women”, the Secretary acknowledged a significant amount of literature on the vulnerability of widows and female heads of house. The Secretary concluded that the Second Appellant’s relationship with her husband acted as a protective factor.^[18] She had also completed ten years of education, putting her in a more advantageous position to secure employment in Sri Lanka if required. The Second Appellant was thereby not reasonably likely to face harm as a Tamil woman if returned to Sri Lanka.^[19]
    
19. The Secretary proceeded to conclude that the Appellants had no well-founded fear of persecution in their home region and were not refugees within the meaning of the Convention. The Secretary further concluded that the Appellants were not owed complementary protection, given there was no reasonable possibility of being subject to torture, cruel, inhuman, or degrading treatment or punishment, or to arbitrary deprivation of life, if returned to Sri Lanka.^[20]
    

REFUGEE STATUS REVIEW TRIBUNAL

20. The Appellants had separate hearings before the Tribunal on 13 July 2016. In a further statement dated 26 June 2016, the First Appellant added to his claims regarding his employment as a driver in a HiAce van between 2001 and 2005, his flight to Pesalai with his wife to avoid the CID and PLOTE, and their subsequent flight to India. He also clarified that the CID first came to his home at the end of November or the beginning of December 2006, rather than in May as he had previously indicated. At the oral hearing, the First Appellant postulated that, while working as a driver, the LTTE were effectively his employers, and he routinely transported LTTE members or goods, including prohibited items.^[21] In a further statement dated 27 June 2016, the Second Appellant added that she had witnessed the shooting of her neighbour’s son in Vavuniya, and was told of other shootings in the area. She said she had a poor memory as a result of the trauma.^[22] At the oral hearing, the Second Appellant testified to the CID and PLOTE officers coming to the Appellants’ home in search of the First Appellant, and her flight to Pesalai with her husband, and their journey to India.^[23]
    
21. The Tribunal accepted the claims that the First Appellant was detained, interrogated and beaten by the SLA in 2001,^[24] worked as a HiAce passenger driver between 2001 and 2005, after which he worked as a driver for a private company in Vanvuniya,^[25] and that the Appellants departed Vavuniya from a bus station, believing that the CID or PLOTE would not be able to abduct the First Appellant in public.^[26]
    
22. At the hearing, the Tribunal expressed reservations about the credibility of the First Appellant’s claims, including that the First Appellant’s passport was authentic,^[27] that the First Appellant transported prohibited items through the checkpoints when he had not advanced this claim previously,^[28] whether it was the CID or the PLOTE, or both, who came to his home on two occasions,^[29] and that the CID would come to his home with the intention of abducting him in their van but not proceed to look inside his house when his wife informed them that he was not home.^[30] The Tribunal expressed concerns as to the credibility of both Appellants’ claims,^[31] and was also concerned about the progression in the First Appellant’s claimed involvement in the hire of the van by the LTTE,^[32] inconsistencies as to the timing of when the CID and PLOTE came to his home, and when the Appellants fled Vavuniya and Pesalai.^[33]
    
23. As a consequence of these concerns, and relevant country information on the security situation in Northern Sri Lanka at the time, the Tribunal was not satisfied that the First Appellant was able to transport prohibited items for the LTTE without being caught,^[34] or that the CID, PLOTE, or any other group, had searched for him.^[35]
    
24. In light of these findings, the UNHCR Guidelines referred to by the Secretary on the protection needs of Sri Lankan Tamils, and the fact the Appellants had never been involved in political activity of any kind,^[36] and had not experienced harm prior to their departure from Sri Lanka in 2006, the Tribunal found that the Appellants would not be imputed with political opinions as supporters of the LTTE.^[37] The Tribunal did not consider that the Appellants’ ethnicity, origins from the north of Sri Lanka, or status as returnee asylum-seekers who departed Sri Lanka unlawfully, would affect this finding.^[38]
    
25. The Tribunal raised a range of country information with the Appellants, including that cited by the Secretary.^[39] As had the Secretary, the Tribunal noted that the situation for Tamils has improved significantly since 2009.^[40] Taking into account all of the information before it, the Tribunal was not satisfied that it was reasonably possible that the Appellants would be subject to discrimination or harm amounting to persecution on account of their ethnicity, or associated factors such as being a female or originating from the North of the country, if returned to Sri Lanka.^[41]
    
26. Again as had the Secretary, the Tribunal noted that, while the Appellants, as returnee asylum-seekers who departed the country unlawfully, might be arrested upon arrival, they were likely to be brought promptly before a Magistrate and released.^[42] It found that they might be subject to routine identity checks, but these procedures would not constitute any form of harm, particularly given the Appellants’ lack of any adverse political profile.^[43] It noted that the UNHCR had facilitated the return of several thousand Sri Lankan refugees from India since 2009, and a survey reflected a high level of satisfaction among returnees in relation to their experience.^[44] The Tribunal was therefore also not satisfied that it was reasonably possible that the Appellants would face harm upon return on account of being “failed Tamil asylum-seekers” or because they departed Sri Lanka unlawfully.^[45]
    
27. In respect of the Second Appellant and the Appellants’ daughter, the Tribunal acknowledged information that women or girls may be at risk of harm if they are single, war widows, or heads of households, but considered that as the Appellants and their daughter would be returning as a family unit, the Second Appellant and daughter would be insulated from this form of harm.^[46]
    
28. In conclusion, as the Appellants’ fear of harm was not well-founded, the Tribunal did not grant refugee status to the Appellants.^[47] On the basis of the above findings, the Tribunal further concluded that the Appellants would not face harm upon return to Sri Lanka that was prohibited by the international treaties ratified and signed by Nauru, and were not owed complementary protection.^[48]
    

THIS APPEAL

29. In amended grounds of appeal dated 27 January 2017 the First Appellant appealed against the decision of the Tribunal on two grounds:
    
    1. In the Tribunal’s assessment of whether the appellant has a well-founded fear of being persecuted in Sri Lanka, it erred on a point of law by failing to consider the process of interrogation to which the appellant would be subjected and the risk that he might suffer serious harm amounting to persecution during that process before being able to convince the authorities that he is not associated with the LTTTE or other Tamil separatist movements. Rather, the Tribunal focused on the likely outcome of questioning by authorities on the return of the appellant to Sri Lanka.
       

Particulars

The Tribunal found that the appellant would undergo standardised screening procedures on arrival in Sri Lanka and be questioned at the airport and questioned and monitored after he returned to his home area. The Tribunal accepted that he would likely be fined for the offence of leaving the country unlawfully and might also be held on remand in uncomfortable conditions for a brief period before he could appear before a court. The Tribunal was not satisfied that this could be seen as serious harm. The Tribunal found that the process of questioning on arrival would not uncover information which could lead to the appellant being subjected to harm [105], [107].

2. In the Tribunal’s assessment of the appellant’s complementary protection claim, it erred by focusing on the outcome of the questioning of the appellant upon his arrival in Sri Lanka, rather than asking whether the process of questioning would expose the appellant to a real risk of torture, cruel inhuman or degrading treatment, and/or arbitrary deprivation of life in Sri Lanka in breach of Nauru’s international obligations.
   

Particulars

The Tribunal accepted that the appellant could be arrested and charged over his illegal departure for India in 2006 and that he would be fined if convicted for such an offence but did not accept he would be sentenced to a term of imprisonment. He could possibly be held on remand for a small number of days while waiting a hearing in a Magistrates Court, in cramped and unsanitary conditions but the Tribunal did not accept that this in itself would constitute torture or cruel, inhuman or degrading treatment or punishment. The Tribunal did not accept that the appellant would be at risk of being tortured in jail [121].

30. The Second Appellant’s amended grounds of appeal mirrored these.
    

SUBMISSIONS ON BEHALF OF THE APPELLANTS

31. It was argued on behalf of the Appellants that they had put their case before the Tribunal that as failed asylum-seekers from abroad they would at the very least inspire additional scrutiny, leading them to face greater risks of harm arising from interrogation as a result. Their concern was that their links with the LTTE would be exposed during questioning, and that interrogation in a sinister sense would follow, this being a reason that they had fled Sri Lanka.
    
32. It was asserted that the Tribunal did not engage with the way in which the Appellants put their claim, only stating (at [106]-[108] of its decision) that:
    

“When this information was put to him at the hearing the applicant said that even though he might be held in prison for only one or two days he would be questioned and interrogated and might reveal under torture that he had previously transported LTTE members He would be asked to identify these former LTTE members and would be in trouble from both the LTTE and the government.

Having carefully considered the country information and the applicant’s responses the Tribunal is not satisfied he would suffer harm by being questioned at the airport on arrival or in questioning and monitoring after he returned to his home area. While the Tribunal accepts he would likely be fined for the offence of leaving the country unlawfully and might also be held on remand in uncomfortable conditions for a brief period before he could appear before a court it is not satisfied this could reasonably be seen as serious harm. As noted, the Tribunal does not accept he was of adverse interest to the authorities when he left Sri Lanka and it does not accept there are any security or criminal matters of which they are so far unaware. The Tribunal finds, accordingly, that the process of questioning on arrival would not uncover information which could lead him to being subjected to harm.

Taking all this information together the Tribunal is not satisfied there is a reasonable possibility that the applicant would suffer persecution, on arrival in Sri Lanka or after his return to his home area, because he had sought asylum in Australia and Nauru, or, to put it in the terms advanced by his representative because of his membership of the particular social group consisting of ‘failed Tamil asylum seekers’, or because he left Sri Lanka unlawfully.”^[49]

33. It was argued for the Appellants that the Tribunal’s conclusion was arrived at on the basis that they were not considered to hold any information that authorities might consider relevant. It was said that this form of analysis had been found to be in error by Driver FM in his 2012 decision in SZQPA v Minister for Immigration,^[50] who concluded at [28]-[31] that:
    

“... the Reviewer accepted that the applicant would undergo scrutiny upon return to Sri Lanka because he had fled the country illegally and would return without documentation. However, the Reviewer reasoned that he would not be of significant interest to the authorities because he was not an active LTTE member or fighter.

In my view, the error in the Reviewer’s approach was to focus on the likely outcome of the possible detention and interrogation of the applicant on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role. It would be arguably possible to characterise the error as a failure to address part of the applicant’s claims, or as a finding for which there was no evidence or which was illogical or irrational or as a failure to have regard to relevant evidence. Those grounds are, however, pointers to the real problem. The real problem was that, except in relation to the issue of arms caches, the Reviewer focused on the ultimate outcome of interrogation and detention rather than the process of detention and interrogation itself.

i>The Revieweriewer was entitled to conclude on the basis of the material before him, that ultimately the applicant would be found not to constitute a risk to Sri Lanka’s security and woresumably be released. Howe However, having accepted that the applicant’s four brothers had been killed because of their imputed membership or association of the LTTE, that the applicant had provided assistance to the LTTE (of whatever kind) and that the applicant would be detained and interrogated upon return to Sri Lanka the Reviewer needed to consider whether that process of detention and interrogation would expose the applicant to a risk of serious harm amounting to persecution, having regard to the country information available to him about the arbitrary nature of detentions occurring, of human rights abuses during detention and interrogation and of the impunity of those responsible. It might have logically followed that because the applicant was able to convince the Reviewer that he was not a LTTE member or active supporter but that he had simply been caught up in the civil war by reason of his ethnicity, family associations and location, that he would also be able to convince the Sri Lankan authorities when he was detained and interrogated. The Reviewer could not, however, assume that the process of interrogation would be as benign as that which the Reviewer himself had employed.

... the Reve Reviewer appeared to give some consideration to the real issue when he said:

The reviewer accepts that he will undergo scrutiny upon return for havled the country illegally ally and would return without documentation and may indeed be recognised as a failed asylum seeker. However, given the fact that the claimant was not an active LTTE member or fighter would mean that the scrutiny on the part of the Sri Lankan authorities upon his return ... would not constitute for him serious harm.”

34. Federal Magistrate Driver found that the information available at the time only related to the general process of interviewing returning asylum-seekers and that that those suspected of having involvement with the LTTE would be taken for further questioning. The applicant before him had been involved with the LTTE at a low level although four of his brothers had been killed or were presumed killed by the Sri Lankan authorities. This meant that the applicant could therefore be expected to be interrogated by the Sri Lankan police so that the authorities could satisfy themselves that, unlike his four brothers, he did not represent a security risk. He commented: “the applicant might well be able to persuade the authorities that he did not represent a risk, but the reviewer was found to have needed to consider what might happen prior to that point being reached. This meant that there had been an error “by focussing upon outcome rather than process.”^[51]
    
35. The decision of Driver FM was subsequently affirmed on appeal by Gilmour J in Minister for Immigration and Citizenship v SZQPA,^[52] who agreed that the Reviewer had erred by focussing on the outcome and not on an interview process that in the circumstances was foreseeable.
    
36. The Appellants conceded that in WZAQR v Minister for Immigration and Border Protection (“WZAQR”),^[53] the Full Court of the Australian Federal Court accepted that the SZQPA decisions did not establish any general principle of law. In WZAQR the independent country information was to the effect that there was not a real chance that the authorities were likely to exhibit any particular interest in the returning asylum-seeker.
    
37. The Appellant submitted that in this matter the Tribunal’s conclusion (at [75]) was made on the basis that the Appellant was not considered to hold any information that the authorities might consider relevant, and it was argued that the error of the Tribunal was in failing to consider the process of interrogation by authorities upon the Appellants’ return to Sri Lanka in the context of the claim by both Appellants of having a well-founded fear of persecution. It was argued that the Tribunal entered into error in failing to consider the form of questioning itself because it contained a false premise that such questioning would not be “assertive” because the Appellants did not have a profile of the kind to excite such a form of questioning. ^[54]
    
38. In respect of the second ground the Appellants argued that the Tribunal had not engaged as it was obliged to do with the argument that, even if the Tribunal did not accept the Appellants’ fear of harm related to any protected characteristics under the Refugees Convention, these fears could nonetheless be assessed by reference to Nauru’s complementary protection obligations.
    
39. It was submitted on behalf of the Appellants that the Tribunal was bound to consider the process of interrogation by authorities upon the return by the Appellants when it considered the claim to complementary protection. Again the complaint was that the focus of the Tribunal was on the possibility of the imposition of imprisonment rather than upon the process of questioning which it was said would expose them to a real risk of torture, cruel, inhuman or degrading treatment and/or arbitrary deprivation of life in Sri Lanka in breach of Nauru’s international obligations.
    

SUBMISSIONS ON BEHALF OF THE RESPONDENT

40. The Respondent accepted that the First Appellant has articulated a claim to the effect that he is at risk of suffering harm as a result of a questioning process that might take place upon his involuntary return to Sri Lanka. It argued that the Tribunal clearly appreciated the nature of the claim by the First Appellant and made findings relating to logically antecedent matters, not accepting that he had carried prohibited items for the LTTE among the general cargo in a lorry, but rather finding that he provided “an essentially minor” level of practical support to the LTTE between 2002 and 2005, during a period of ceasefire, when such activities were legal. This conduct had had no significant consequences for the First Appellant while he was living in Sri Lanka until late 2006 and the Tribunal did not accept that his conduct had brought him to the adverse attention of the CID, PLOTE or other authorities, or that they ever searched for him or attempted to arrest him.
    
41. Thus, the Respondent argued that the Tribunal had correctly found that the mistreatment identified in cases described in the country information was not directly relevant to failed asylum-seekers involuntarily returned to Sri Lanka who did not have current links to the LTTE or a criminal history.
    
42. It argued that the Tribunal properly referred to the country information placed before it, acknowledging that a returnee may be found to have breached the Sri Lankan Immigrants and Emigrants Act, and be placed in the remand section of the Negombo prison for a few days. It argued that it was open to the Tribunal to find that the First Appellant would not be imputed with or suspected of holding a pro-LTTE or anti-government opinion to a point where extra-legal interrogative measures were likely to be employed. It also argued that it was apparent that the Tribunal applied its attention to the questioning process claim and did not find it established.
    
43. On the second ground of appeal, the Respondent contested that the Tribunal was necessarily required to give express consideration to one of the claims comprehended under the rubric of the Convention claims, namely the questioning process claim. It argued that the Australian Federal Court has consistently sanctioned an approach by administrative tribunals whereby in circumstances where “the underlying substratum of a statutory claim” for a complementary protection claim has been considered and rejected in findings directed at a Convention claim, the decision-maker is not compelled to deal separately with the complementary protection claim.^[55] This led it to submit that where the Tribunal had dealt squarely with the Convention claim in respect of questioning and monitoring after a return home by the Appellants, there was nothing residual upon which the complementary protection claim could operate, saying:
    

“In these circumstances, the Tribunal dud not fail to consider the appellants’ complementary protection claim as to the extent such claim could be distinguished from the Convention claim, it was wholly subsumed by the Tribunal’s findings made in connection with the former.”^[56]

44. In any event, the Respondent contended that the Tribunal made findings under the heading of “assessment of complementary protection” in respect of both Appellants that they would not be at risk of torture if remanded in custody as a result of being charged with illegal departure.

CONSIDERATION

Ground One

45. The Tribunal stated that it had carefully considered the First Appellant’s responses and the country information. It concluded that he would be likely to be fined for leaving Sri Lanka unlawfully, and “might also be held on remand in uncomfortable conditions for a brief period before he could appear in a court.”^[57] However, it stated that this could not reasonably be seen as serious harm. It arrived at a similar conclusion in respect of the Second Appellant.
    
46. It concluded that the Appellants were not of adverse interest to the authorities when they left Sri Lanka and it did not accept that there were any security or criminal matters of which the authorities were unaware. This led it to conclude that the process of questioning the Appellants upon their arrival back in Sri Lanka would not uncover information which could lead to their being subjected to harm: this extended to questioning at the airport on arrival or in questioning and monitoring after they returned to their home area.^[58] It concluded that each applicant was not of:
    

“adverse interest to the authorities when he left Sri Lanka and it does not accept there are any security or criminal matters of which they are so far aware. The Tribunal finds, accordingly, that the process of questioning on arrival would not uncover information which could lead to him being subjected to harm.

Taking all this information together the Tribunal is not satisfied there is a reasonable possibility that the applicant would suffer persecution, on arrival in Sri Lanka or after his return to his home area, because he sought asylum in Australia and Nauru or, to put it in the terms advanced by his representative, because of his membership of the particular social group consisting of ‘failed asylum seekers’, or because he left Sri Lanka unlawfully.”^[59]

47. The Appellants sought to rely upon the decision of Driver FM in SZQPA v Minister for Immigration (“SZQPA”),^[60] who, amongst other things, held that the Reviewer whose decision was under appeal erred because it was not open to the Reviewer in the particular circumstances of the case to assume that the process of interrogation would be as “benign” as that which the Reviewer had employed. Necessarily, the reasoning of Driver FM was contextual – it arose from country evidence then available and was a product of the particular evidence in the case which included that the Applicant had spent a considerable period of his life in LTTE areas during which time he transported LTTE goods in his boat, some of which were arms caches, which might be the subject of interest by the authorities. The Appellant’s son had also been briefly detained by the authorities who inquired about his whereabouts, and two of his four brothers had been short dead by the authorities and the other two were missing, presumed dead.^[61] Clearly, this meant that he might well be the subject of particular concern to the Sri Lankan authorities and that would impact upon the kind of questioning to which he was likely to be subjected. It distinguished him among returning asylum-seekers who had no profile such as was likely to excite similar interest on the part of the authorities.
    
48. The fact that matters in this regard need to be scrutinised with care to determine whether factual scenarios are relevantly distinguishable was confirmed by Judge Lloyd-Jones in SZSRU v Minister for Immigration and Border Protection,^[62] and then also by Katzmann J on appeal in SZSRU v Minister for Immigration and Border Protection, where she observed that:
    

“SZQPA must derstood in its particarticular factual context. As the Minister submitted, SZQPA does not lish a general prol proposition that decision-makers are required in every case to determine whether an applicant for a protectisa mie harmed in the process of questioning: cf. WZAQR v Minister forgrationationation and and Border Protection (2038 ALD 17;>; [2013] FCAFC 122 at [28]. In SZQPA thevantual tual context wast was that the applicant had claimed that he would be subjected to persecution during questioning by Srkan aities on his return. The relevant factual context also included, as Gilmour J notJ noted ated at [61], that there was no room for doubt, on the facts accepted by the independent merits reviewer, that on arrival in Sri Lanka the applicant would assume a risk profile as a person suspected of having links with the LTTE.” ^[63]

49. Similarly, in WAQAR, Flick, Robertson and Griffiths JJ identified the particularity of the facts underlying why the applicant in SZQPA was at especial risk.^[64]
    
50. The circumstances of this matter are significantly at variance from those in SZQPA. The Appellants failed to satisfy the Tribunal that their circumstances were such as to give reason for a justified concern about being persecuted during interrogation as failed asylum-seekers. This meant that there was no obligation on the part of the Tribunal to consider the claim concerning the process of questioning because it was not relevant. This ground of appeal is not made out.
    

Ground Two

51. It was incumbent upon the Tribunal to distinguish clearly between its reasoning in relation to the component of the application which related to statutory criteria for refugee status from its reasoning which bore on the complementary protection criterion.^[65] Amongst other distinctions, the test for a Convention-related claim is whether there has been “serious harm”, whereas in respect of complementary protection the test is whether there is “significant harm”.^[66]
    
52. However, where the findings of fact by the Tribunal apply both to the substantive claim for a Convention-related claim to refugee status, it is not necessary in circumstances such as the present that there be explicit reiteration of findings in respect of the claim for complementary protection;^[67] the factual substratum is the same. The critical question is what the outcome is when the complementary protection test is applied to the facts found.^[68]
    
53. In its reasons the Tribunal reiterated that it had concluded there was no reasonable possibility that the Appellants would be subjected to persecution and adverted to what might occur upon the Appellants being returned to Sri Lanka, accepting the possibility that they could be arrested and charged with a breach of the Immigrants and Emigrants Act. Its conclusion was that having regard to issues arising from arrest, charge, temporary detention and discrimination, it was “not satisfied that the treatment the applicant might encounter in Sri Lanka would be of a kind, and at a level of seriousness, which could render Nauru in breach of its international obligations by returning him there. Consequently, the Tribunal is not satisfied that the applicant is owed complementary protection.”^[69]
    
54. In these circumstances there was no materially different issue for the Tribunal to address, and the factual substratum was the same as ain the Convention-related claim, so no error in this regard was made by the Tribunal. This ground of appeal is not made out.

CONCLUSION

55. Under s 44(1) of the Act, I make an order affirming the decision of the Tribunal.
    

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Justice Ian Freckelton
Dated this 22^nd day of 2018




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^[1]19fugee Convention and 1967 P967 Protocol, also referred to as “the Refugees Convention” or “the Convention”.
^[2]Book of Documents (“BD”) 111.
^[3]BD 135.
^[4]BD 111.
^[5]BD 112.
^[6]BD 116; BD 137.
^[7]Ibid.
^[8]BD 124
^[9]BD 123.
^[10]BD 145.
^[11]BD 124; BD 145.
^[12]BD 117-118.
^[13]BD 119.
^[14]BD 121.
^[15]BD 122.
^[16]BD 123.
^[17]BD 125.
^[18]BD 144.
^[19]BD 147.
^[20]BD 125-126; BD 147-148.
^[21]BD 364 at [22], BD 374 at [63]-[64].
^[22]BD 393 at [17].
^[23]BD 395-396.
^[24]BD 373 at [59].
^[25]Ibid at [60].
^[26]BD 376 at [76]; BD 402-403 at [48].
^[27]BD 367 at [40].
^[28]BD 365 at [31].
^[29]BD 366 at [37].
^[30]Ibid at [35].
^[31]BD 402 at [47].
^[32]BD 373 at [63].
^[33]BD 375 at [71]; BD 401 at [47].
^[34]BD 375 at [69]; BD 403 at [49].
^[35]BD 376 at [75]; BD 404 at [54].
^[36]BD 378 at [82]; BD 403 at [53].
^[37]BD 380 at [88]; BD 404-405 at [57].
^[38]BD 380-381 at [90]-[95]; BD 405 at [60]-[64].
^[39]BD 369 at [43].
^[40]BD 382 at [98]; BD 406-407 at [67].
^[41]BD 383 at [101]; BD 407 at [70].
^[42]BD 370 at [50]; BD 382 at [98]-[101].
^[43]BD 384 at [107]-[108]; BD 408 at [74].
^[44]BD 371 at [53]; BD 409 at [78].
^[45]BD 384 at [105]-[108]; BD 408 at [76].
^[46]BD 398 at [38]; BD 410 at [84].
^[47]BD 385 at [113]; BD 410 at [86].
^[48]BD 387 at [123]; BD 412 at [94].
^[49]QLN 065: BD 384 at [104]-[106]; See also QLN 067 at [75]-[76].
^[50] [2012] FMCA 123 at [28]- [33].
^[51] [2012] FMCA 123 at [34].
^[52][2012] FCA 1025.
^[53][2013] FCAFC 122.
^[54]Supreme Court Transcript p17.
^[55]See, eg, SZTMQ v Minister for Immigration and Border Protection [2015] FCA 535.
^[56]Submissions of the Respondent, 22 January 2018, at [30].
^[57]QLN 065: BD 384[107]; QLN 067: BD 408 [75].
^[58]QLN 065: BD 384 [107]; QLN 067: BD 408 [75].
^[59]QLN 065: BD 384 [107]-[108]; QLN 067: BD 408 [75]-[76].

^[60] [2012] FMCA 123 at [28]- [33]. The decision was upheld by Gilmour J in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025.
^[61]Ibid at [24].
^[62][2014] FCCA 1549.
^[63] [2014] FCA 1252 at [61].
^[64] [2013] FCAFC 122 at [32]- [36].

^[65]See SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [32]; SZSJC v Minister for Immigration [2013] FCCA 1755 at [31].
^[66]See, eg, SZSJC v Minister for Immigration [2013] FCCA 1775 at [31].

^[67]SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32]- [35]; SZSXE v Minister for Immigration and Border Protection [2014] FCA 867 at [56]; SZTMQ v Minister for Immigration and Border Protection [2015] FCA 535 at [36].
^[68]SZSXE v Minister for Immigration and Border Protection [2014] FCA 867 at [56].
^[69]QLN 065: BD 387 at [123]; QLN 067: BD 412 at [94].