DZADS v Minister for Immigration
[2014] FCCA 1082
•27 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZADS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1082 |
| Catchwords: MIGRATION – Judicial review of Refugee Tribunal’s decision – whether decision affected by jurisdictional error – misstatement of law did not affect decision as a whole. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth) |
| Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175 Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 Minister for Immigration & Border Protection v SZSCA [2013] FCAFC 155 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | DZADS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | DNG 8 of 2013 |
| Judgment of: | Judge Harland |
| Hearing date: | 16 April 2014 |
| Date of Last Submission: | 16 April 2014 |
| Delivered at: | Darwin |
| Delivered on: | 27 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | In Person Mr Gormly appearing for the Applicant on 16 April 2014 |
| Counsel for the Respondents: | Mr Anderson |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
That the application be dismissed.
That the Applicant pay the First Respondent’s costs fixed at $6,646 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 8 of 2013
| DZADS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks a judicial review of the Refugee Review Tribunal decision to refuse the applicant’s application for application for a protection visa. He relies on ground 1 of his amended application filed on 10 December 2013.The applicant did not rely on ground 2 in his amended application.
The applicant complains that the Tribunal made a jurisdictional error being asking itself the wrong question and applying the wrong test when considering what actions the applicant could take to avoid persecution. His amended application sets out the particulars in support of this complaint.
Much of the focus of the oral argument focused on paragraph 52 of the Tribunal’s decision and in particular the first sentence and the last two sentences of that paragraph. I set out the paragraph in full:
“The Tribunal has found that the applicant has not previously been physically attacked, reported to the police, threatened by the police or threatened with being reported as an LTTE supporter. The Tribunal has found that the applicant’s creditors would not harm or kill him as it would not be in their interests to do so. The Tribunal did not accept that Suranka would pay someone to have him killed. The Tribunal finds also that it is reasonable to expect that if the applicant was genuinely fearful that this would occur he would minimise or eliminate the chance of this by not seeking to recover the money owed to him. The Tribunal is satisfied that contemplating that the applicant might elect not to recover the money owed to him. The Tribunal is satisfied that contemplating that the applicant might elect not to recover money owed to him to avoid particular dangers he envisages from Suranka does not amount to an impermissible requirement that the applicant change something fundamental to his identity or beliefs to avoid persecution.”
The first respondent concedes that the Tribunal made an error in the last sentence of [52]. However the first respondent says that this sentence is superfluous to the decision and can be ignored.
The applicant largely based his application for a protection visa on the following bases:
a)That the applicant was threatened by an individual called Suranka that he would report the applicant to authorities as being an LTTE supported;
b)That Suranka threatened to kill the applicant;
c)That the applicant was threatened by creditors he was unable to pay due to Suranka failing to pay what he was owed;
d)That the applicant was threatened and harassed by other groups including the police, the navy and villagers.[1]
[1] The applicant sets out his assertions about Suranka at CB 27 and 28 [11-14, 19-20]. The applicant says that he is vulnerable because he is a Tamil and where he lived is a majority Tamil area. CB 29 at [28]-[29] the applicant makes a distinction between his fears in relation to Suraka and his fears that the Sinhalese people he owes money to as a result of Suranka not paying the applicant.
Counsel for the applicant placed much emphasis on the first four words of [52]. He argued that these words show that this paragraph was not intended to constitute a finding about Suranka’s threats. He also placed emphasis on the fact that there was not an explicit finding about the threats before this paragraph.
The applicant argues that the Tribunal did not make a finding that the applicant was not threatened by Suranka before [52] of the Tribunal’s decision. The applicant placed much emphasis on the first four words on [52] which are “The Tribunal has found…”. The applicant argues that these words are not expressive of a finding being made in [52].
The delegate found that the applicant presented as a credible witness.[2] The delegate further found that the applicant’s fears are related to private matters rather than any of the reasons outlined in the Refugees Convention.[3] The delegate was not satisfied that the repayment of the debt was so important to him that it was the most important thing on his mind and that his actions showed a lack of urgency with respect to his creditors [as distinct from his debtor Suranka].[4]
[2] Court Book page 83
[3] Court Book page 84.
[4] Court Book page 88.
The Tribunal addressed the alleged threats from the applicant’s creditors.[5]
[5] Court Book pages 170-171.
The Tribunal accepted that the applicant was owed money by Suranka and that he accumulated debts to local fishermen.[6]
[6] Court Book page 168 [27].
The Tribunal expressed a number of concerns about the applicant’s credibility about his fears if he returns to Sri Lanka: “As indicated by the evidence discussed below, his claims regarding his business problems and the threats of harm he claims to have faced as a result are complex, interlinked and at times confused.”[7]
[7] Court Book page 169 [28]. See also [30].
The Tribunal also expressed concern about the steps the applicant has taken to discharge his debts.[8] His failure to use all the money available to him to reduce his debts detracted from his credibility.
[8] Court Book page 170 [34] and [35].
The Tribunal rejected the applicant’s assertion that Suranka would pay someone to kill him.[9]
[9] At [49].
The Tribunal discusses the applicant’s business problems.[10] The Tribunal stated at [51] that it accepted that if the applicant returns to Sri Lanka and does not repay the money he owes he may be subjected to threats or demands for payment but the Tribunal did not accept that this would result in serious harm.
[10] Court Book page 175 [51] to [54].
The first respondent argues that a fair reading of the Tribunal’s decision as a whole it is clear that the Tribunal dealt with the threat to claim with respect to Suranka and found that the claim did not have merit.
The first respondent referred to the fact that the Tribunal dealt with the applicant’s business problems and found that there was no well founded fear in accordance with the test. The first respondent also draws the court’s attention to [54] of the decision, where the Tribunal refers to not accepting that the applicant would be subjected to serious harm as a result of this business problems including specific reference to Suranka. A fair reading of the decision the reference to Suranka in [54] clearly refers to the whole of the integer first of the claim with respect to Suranka. The first respondent submits that [52] should be read in broad terms to refer to all claims even if the court is not of that view it is clear that all aspects of the applicant’s claims were squarely dealt with at [54].
The alleged threats by Suranka are first mentioned at [3]. It is clear that the reference to the threat is that Suranka would report the applicant to authorities as a LTTE supporter. This threat claim is identified again at [31] and [41-42] of the decision. It is clear from the references in these paragraphs that the Tribunal was well aware of the allegations of threats being made to the applicant by Suranka harm in addition to alleged threats being made by creditors.
The first respondent submits that it is unfortunate that the Tribunal made a gratuitous aside in [52] which contains the misstatement of law but that this clearly did not infect the decision.
There is force in a submission by the first respondent that the applicant is seeking to isolate small parts of the decision which takes them out of context and this is certainly the case with respect to the first four words of [52]. I did not place the same emphasis on those first four words as the applicant does. It is clear that the Tribunal specifically identifies the Suranka threat in paragraphs appearing in the decision before and after [52]. It also needs to be recognised that the Suranka threat was just one part of the applicant’s claim.
The first respondent also submits that it is necessary to look at [52] in context and not just in isolation. The last sentence is referring to a hypothetical scenario not a requirement by the applicant to modify his behaviour upon returning to Sri Lanka. It seems to me that if the Tribunal had specifically named Suranka in the first sentence of [52] then this review would not be before this court. It is reasonable on a fair reading of the whole of the decision to imply that the reference to Suranka there. Given the references to the Suranka threat to report (as distinct from the threats to kill) has been referred to in several places throughout the decision. It was not overlooked by the Tribunal.
Counsel agree that the correct statement of the law is that the Tribunal cannot require an applicant to take reasonable steps to avoid persecution.[11] It is clear that the last two sentences of [52] misstate the law. It is unfortunate that the Tribunal included these sentences as it is clear on a fair reading of the whole decision the Tribunal rejected the Suranka threat to report claims.
[11] Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175; Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; Minister for Immigration & Border Protection v SZSCA [2013] FCAFC 155
The first respondent draws a distinction between Minister for Immigration & Border Protection v SZSCA [2013] FCAFC 155 and the current case the Tribunal found in this case that the applicant did not face a real risk of harm. It is clear from reading these two sentences that the Tribunal is referring to a possible subjective fear. I accept this submission.
The Tribunal correctly stated the refugee criterion.[12] It is also clear from the Tribunal’s reasons that it rejected the applicant’s contentions that he was a serious risk of harm and had a well-grounded fear with respect to all of his claims about threats of being reported and threats to kill including the alleged threat that Suranka would report him as a LTTE supporter.
[12] Court Book pages 166-167.
I accept the first respondent’s submissions that what the applicant’s argument falls foul of Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184. The applicant places much emphases on isolated parts of the decision and the choice of wording which can only be seen as being “with an eye keenly attuned for error”.
For these reasons the application must fail. I will order that the applicant pays the first respondent’s costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 27 May 2014
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