SZJKA v Minister for Immigration - [2007] FMCA 536

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJKA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 536

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)

Minister for Immigration v Wu Shan Liang (1996) 136 ALR 481

Applicant:

SZJKA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2678 of 2006

Judgment of:

Driver FM

Hearing date:

12 April 2007

Delivered at:

Sydney

Delivered on:

12 April 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Miss K Rose
DLA Phillips Fox

ORDERS

Order 2 made on 4 December 2006 by Federal Magistrate Burnett is amended as follows:
The first respondent is ordered, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) to show cause why relief should not be granted in relation to an amended application to be filed in accordance with order 1 herein.
Leave is granted to the applicant to rely upon the amended application and outline of submissions filed on 11 April 2007.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2678 of 2006

SZJKA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The Tribunal decision was handed down on 31 August 2006. The applicant sought judicial review of the Tribunal decision by way of a show cause application filed on 21 September 2006. In that application he asserted notification of the decision on 4 September 2006. On that basis I find that the application to this Court was filed within time.
The background to the applicant's protection visa claims and the Tribunal decision on them is set out in the Minister's outline of written submissions. I adopt as background for the purposes of this judgment paragraphs 2 through to 15 of those written submissions:
The applicant is a male citizen of Sri Lanka.[1] He arrived in Australia on 28 July 2001[2] and applied for a protection (class XA) visa on 16 January 2001.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 9 May 2006.[5]
[1] court book (CB) 7
[2] CB 28
[3] CB 27
[4] CB 29
[5] CB 107
The applicant applied to the Tribunal for review of the original decision on 29 May 2006.[6] He gave oral evidence before the Tribunal on 2 August 2006. The Tribunal handed down its decision on 22 August 2006.
[6] CB 118
The applicant's claims
The applicant is a citizen of Sri Lanka who claimed to fear persecution from both the LTTE and the Sri Lankan authorities who imputed him with a pro-LTTE profile. The LTTE believed he provided information on Tamil youths who later disappeared. His claims are contained in a statutory declaration accompanying his protection visa application.
The applicant arrived in Australia in 2001 on a student visa. He claimed that through his room mate, who was Tamil and a LTTE supporter, he became involved in the LTTE support group in Melbourne. However, he now fears his room mate as he no longer wanted to hear about the LTTE.
The applicant's advisor later claimed the applicant's parents were still receiving threatening calls in Sri Lanka enquiring as to the applicant's whereabouts and that despite holding a substantial visa, the applicant had not returned to Sri Lana for five years as he feared for his life.
The applicant appeared before the Tribunal on 2 August 2006. He provided written submissions which essentially reiterated his claims and further submitted that Sri Lankan authorities were unable and unwilling to provide protection.
The decision of the Tribunal
The Tribunal accepted:
(a)The applicant witnessed the ill-treatment of Tamils, but found he did not suffer harm as contemplated by the Act.
(b)The applicant had suffered ill treatment at his work when manufacturing capacity was less than demanded, but found any harm suffered was not related to any Convention ground.
(c)The applicant's father was bashed by two Tamil drivers he employed, but found this to be an isolated incident of violence.
The Tribunal was also satisfied the applicant met four Tamil youths at work to whom his father agreed to provide accommodation at granny flats they owned. It was further satisfied that after a police random check of the flats in 2000, police found material supporting the LTTE, bomb-making devices and cyanide kits. While having some doubts, the Tribunal also accepted the applicant and his father were detained as a result of the search, suffered some ill-treatment and were subsequently released upon the payment of a bribe by his uncle. However the Tribunal:
(a)Was satisfied that once released, the applicant was no longer of interest to authorities.
(b)Found it implausible authorities would release any person suspected of supporting the LTTE after three to four days.
(c)Considered if dangerous items such as bomb-making kits were found, and the applicant was suspected of LTTE activities, it was unlikely he would have been released so quickly if he was still of interest to authorities.
(d)Relied on country information in finding, even with bribery, it unlikely the applicant would have been released into a situation 'like house arrest' and not house arrest as stipulated by law.
After considering the evidence as a whole, the Tribunal found that after finding such items in the flats, the police had a legitimate reason to detain the applicant and his father, namely in the investigation of potential crimes. The Tribunal was not satisfied that the detention and arrest were related to being suspected of any LTTE involvement or support. Nor was the Tribunal satisfied any harm will occur to the applicant in the reasonable foreseeable future because of the arrest.
The Tribunal further found it unlikely there was any chance of harm by Sinhalese workers or extremists occurring to the applicant in the reasonably foreseeable future on the basis of actual or imputed LTTE political opinions or activities.
The Tribunal also noted the applicant claimed at hearing to support the UNP party but found this was not a reason for his arrest in 2000.
The Tribunal rejected claims that the LTTE suspected he gave information to the authorities about LTTE plans after he was arrested. It found the applicant did not have a profile that would be of interest to the LTTE. By his own admission, he had no knowledge that the Tamils his family accommodated were LTTE and he had no knowledge of any LTTE plans or activities.
Given the nature of the applicant's claims, that he and his father were arrested on suspicion of LTTE support, the Tribunal found it implausible that the applicant would live with a room mate whom he believed was a LTTE supporter. While accepting the room mate was Tamil, in light of the evidence, the Tribunal rejected claims the room mate stole from the applicant or that the applicant moved to Sydney because he feared the room mate and did not want to know about the LTTE.
Relying on country information, the Tribunal found that given the applicant was Sinhalese and is a member of a majority ethnic group in Sri Lanka, most problems relate to the LTTE. Considering the evidence as a whole, the Tribunal rejected claims the applicant had a political or other profile that meant there was a real chance that he would suffer Convention-related serious harm if he were to return to Sri Lanka either by Sri Lankan authorities, the LTTE or any other group.
I gave directions in relation to this matter on 13 October 2006. I listed the matter for a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) on 4 December 2006. The show cause hearing on that day was conducted in my absence by Burnett FM. His Honour ordered that the Minister show cause why relief should not be granted in relation to a future amended application which he permitted to be filed by 22 December 2006. In fact an amended application was not filed until yesterday. I gave leave to the applicant to rely upon that amended application on the basis that the Minister would not be prejudiced. The applicant also took the opportunity to file written submissions yesterday and also made oral submissions at the hearing today. The Minister also took the opportunity to file written submissions and also to make oral submissions. The only evidence that I have before me is the court book filed on 31 October 2006.
The main difference between the original application and the amended application is that it adds an additional ground of failure to consider the applicant's claims as a claim of membership of a particular social group. I will treat that as the third ground of review.
The grounds of review in both the original and amended applications are somewhat discursive. The first two grounds of review common to the original and amended applications are adequately summarised in paragraph 16 of the Minister's submissions which I incorporate in this judgment:
The application contains the following grounds:
Ground 1: the Tribunal made a jurisdictional error in misapplying the relevant law of 'Convention Ground' and ' well founded fear'.
The particulars to this ground complain that the Tribunal did not assess whether the applicant's claims involved imputed political opinion as a result of being a suspected LTTE supporter.
Ground 2: the Tribunal took into account irrelevant considerations when assessing the applicant's credibility, but refused to consider the evidence as a whole and made a "serious illogical finding" in relation to the issue of LTTE persecution.
It was apparent from the applicant's written and oral submissions as well as a fair reading of the original and amended applications that, while a contest is raised in a form which asserts jurisdictional error, the applicant's real concern is with the merits of the Tribunal decision. Although I explained to the applicant that the merits of the Tribunal decision are beyond the scope of this proceeding, the matters that he raised with me orally all went to the merits.
The applicant impressed me as a sincere individual who genuinely fears harm should he be required to return to Sri Lanka. Although the Tribunal found that his fear of persecution was not well founded, the recent deterioration of the political situation in Sri Lanka may merit a reconsideration of his position. That is beyond the scope of this proceeding. In the absence of any jurisdictional error in the Tribunal decision, it is solely a matter for the Minister's consideration.
There is in my view no substance to the asserted jurisdictional errors in both the original and amended applications. The first two grounds are adequately answered in paragraphs 17 to 21 of the Minister's submissions. I agree with and adopt those paragraphs with necessary amendments for the purposes of this judgment:
Ground 1
The Tribunal was not satisfied that the applicant's experiences were related to any suspicion of LTTE support.
Contrary to the applicant's assertion, the Tribunal did consider whether the detention and ill-treatment of the applicant and his father in 2000 was related to imputed political support for LTTE. The Tribunal ultimately found, on the basis of the applicant's own evidence that he and his father were released after 3-4 days after paying a bribe, that the applicant was not of continuing interest to the authorities and that he did not have an imputed political profile of supporting the LTTE. This conclusion was reached after the Tribunal had considered the entirety of the applicant's evidence.
The evaluation by the Tribunal of the possibility of future harm was comprehensive. The Tribunal considered all possibilities of future harm, according to the evidence of the applicant, before rejecting them on the basis of that evidence and its implausibility, as well as country information. In accordance with the approach endorsed in Wu Shan Liang (1996) 136 ALR 481, the claims regarding future harm in Sri Lanka were evaluated and discounted on the basis of their implausibility and therefore they did not rise to the level of contributing to the establishment of a "real chance" of persecution.
Ground 2
This ground simply attempts to reargue the merits of the Tribunal decision.
Furthermore, the weight to be given to documents provided by the applicant is a finding of fact to be made by the Tribunal and, where supported by evidence, should not be disturbed on judicial review.
As to the third ground, there is nothing in the court book to establish that the applicant ever articulated his claims as claims of membership of a particular social group. Neither could it be said that such a claim squarely arises from the material he presented. On the contrary, his claims appear to be claims of persecution based upon imputed political opinion. That is how they were presented and that is how the Tribunal considered them. The Tribunal is not under an obligation to consider a claim that is not made. Even if the claims had been considered as including a claim of membership of a particular social group, it is hard to see how that would have made any difference. It is true that in its decision (CB 212) the Tribunal, by reference to country information, found that the applicant was unlikely to be at risk of harm from the Sri Lankan government as a member of the Sinhalese majority. The Tribunal considered it unlikely that he would be imputed with an opinion as a supporter of the LTTE as a Sinhalese. However, even if the claim had been considered as a claim of membership of a particular social group, the same country information would logically have led to the same conclusion. Another difficulty with the third ground is that the particular social group hypothesised in the applicant's submissions is not properly constructed. In the terms in which the group is defined in the applicant's submissions, the applicant was not a member of the group.
Having considered all of the material and having heard the parties, I conclude that the Tribunal decision is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,800. The applicant indicated he would be interested in exploring the method of payment with the Minister's representatives but he did not otherwise wish to be heard on costs. I am satisfied that costs of not less than $3,800 had been properly and reasonably incurred on behalf of the Minister. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,800.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 17 April 2007