SZQYH v Minister for Immigration

[2012] FMCA 1039

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQYH v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1039

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal failed to make a finding in relation to one of the applicant’s claims – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.425, 476

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244

Applicant: SZQYH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2857 of 2011

Judgment of: Nicholls FM

Hearing date: 11 September 2012

Date of Last Submission: 11 September 2012

Delivered at: Sydney

Delivered on: 19 November 2012

REPRESENTATION

Counsel for the Applicant: Mr S Pararajasingham

Solicitors for the Applicant: JPS Legal

Counsel for the Respondent: Mr JD Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application made on 13 December 2011, and amended on 29 February 2012, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2857 of 2011

SZQYH

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application, made on 13 December 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 29 February 2012, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 11 November 2011, which affirmed the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a Sri Lankan citizen of Tamil ethnicity and of Muslim faith (Court Book – “CB” – CB 1). He arrived in Australia on 10 March 2011 on a student visa (CB 3). On 15 March 2011, that visa ceased at which time the applicant applied for a protection visa (CB 1 to CB 25, with annexures).

2. The applicant’s claims to protection were detailed in a 14 page statement annexed to his protection visa application. That statement contained both a personal account of his claims to protection and general country information (CB 56 to CB 69). The applicant’s relevant claims can be summarised as he feared harm from the Sri Lankan authorities and paramilitaries because he was perceived to have Liberation Tamil Tigers of Eelam (“LTTE”) links, which arose from his frequent trips to LTTE areas (on business with, and for, his father where he stayed with a person named “James” who was known as being involved with the LTTE, and because of his mother’s relatives who lived in that area).

The Delegate

1. The applicant attended an interview with the delegate on 19 May 2011 (CB 79). By letter dated 31 May 2011, the applicant was advised that his protection visa application had been refused by the delegate (CB 81).

2. The delegate found that, while the applicant was reluctant to return to Sri Lanka, there was no evidence that “James” had been involved with the LTTE (CB 90). Further, the delegate found that the applicant’s father would have been aware of any issues or concerns surrounding “James” activities and that both the applicant and his father would have had knowledge of any dangers for Tamils travelling in the Mannar and Jaffnar districts (CB 90). Despite that, the applicant did not claim to have a fear of persecution until February 2011 (CB 90.3).

3. The delegate ultimately found that the applicant did not have a genuine fear of harm and as such was not a person to which Australia owed protection obligations (CB 92).

The Tribunal

1. On 24 June 2011, the applicant applied to the Tribunal for review of the delegate’s decision (CB 93). He was invited to, and attended, a hearing on 8 November 2011 (CB 123). He was assisted on that occasion by an interpreter in the Tamil language (CB 123).

2. From the Tribunal’s account of the hearing, it questioned the applicant extensively on his knowledge of, and connection to, “James”. The applicant told the Tribunal that he did not know “James’” last name, what “James’” role was within the LTTE, or where “James” was now ([35] at CB 125).

3. In its analysis the Tribunal noted its concerns about the applicant’s credibility. It found the applicant’s evidence to be “vague and limited” ([52] at CB 129). Relevantly, the Tribunal proposed that if the applicant had been targeted by Sri Lankan authorities and had had relationships with “… persons associated with the LTTE”, he would have “… know[n] more about those persons and their alleged involvement with LTTE” ([52] at CB 129). The Tribunal found that the applicant’s claims regarding his suspected involvement with the LTTE to have been fabricated in order to enhance his application for a protection visa ([52] at CB 129).

4. The Tribunal also had difficulty in reconciling the applicant’s numerous visits to Sri Lanka with him having a well-founded fear of persecution (despite the applicant’s claims that his father had “… told him it [Sri Lanka] was safe”) ([53] at CB 129). It found that the significant delay between the applicant’s arrival in Australia and his applying for a protection visa cast further doubt on his claims to protection ([53] at CB 130).

5. Finally, with reference country information, the Tribunal found that the applicant, being a young Tamil man, would not have been able to avoid harsh treatment had the Sri Lankan authorities suspected him of an association with the LTTE. Further, that it was unlikely, in those circumstances, that his father would have been able to secure his release from custody by payment of a bribe as the applicant claimed ([54] at CB 130).

Application to the Court

1. The amended application to the Court is in the following terms:

   “1. The Second Respondent (the Tribunal) erred in failing to perform its statutory duty to review the First Respondent’s decision under section 414 of the Migration Act 1958 (the Act).

   Particulars

   The Tribunal failed to consider or make findings in relation to the claims made by the applicant in support of his contention that he was perceived by the authorities in Sri Lanka and paramilitaries associated with the government to have links to the LTTE, namely:

   I.      that he had relatives in Jaffna who were associated with the LTTE; and

   II.     that he had travelled to Jaffna.

   2. The Tribunal erred in failing to perform its statutory duty under section 425 of the Act by failing to afford the applicant the opportunity to give evidence and present arguments in relation to the decision under review.

   Particulars

   During the hearing, the Tribunal did not allow the applicant to give evidence and present arguments about business trips to Jaffna which the applicant claimed had given rise to a perception by the authorities in Sri Lanka and paramilitaries associated with the government that the applicant had links to the LTTE.”

Before the Court

1. At the hearing, Mr S Pararajasingham of counsel appeared for the applicant. Mr J Smith of counsel appeared for the first respondent. The Court had before it the amended application, the Court Book and written submission filed by both the applicant and the respondent.

2. In addition the applicant sought leave to read and rely upon the affidavit of Mr Edilbert Naveenan Rajadurai, made on 25 February 2012. Annexed to that affidavit was a transcribed record of the Tribunal hearing that occurred on 8 November 2011 (“the transcript” – “T”) Leave was granted, with no objection by the first respondent.

Ground one

1. The applicant only sought to press ground one of the amended application. The complaint contained in that ground is that the Tribunal failed to make a finding in relation to one of the applicant’s claims.

The Submissions

1. In short, that was suggested to be because the Tribunal did not specifically make a finding that related to the applicant’s contention that he was perceived, by the Sri Lankan authorities, to be connected to the LTTE through his familial ties.

2. The submission was that, in his application for a protection visa, before the Minister’s delegate, and at the hearing before the Tribunal, the applicant had relied on two specific matters in support of his contention that he was perceived to be associated with the LTTE. The first was that one of the applicant’s father’s agents from Jaffna, “James” (whom the applicant often stayed with when in Jaffna), was suspected by the Sri Lankan authorities of being involved with the LTTE. The second was that much of the applicant’s (mother’s) family resided in Jaffna and that they were also suspected by the Sri Lankan authorities of being associated with the LTTE.

3. That this claim was raised before the Tribunal (not only in the initial statement of claims and before the delegate) was said to be revealed with reference to the transcript of the hearing. Specifically at T7, line 35 to line 41:

   “MAlright. You went and spent time with James. And is that what got you into trouble with police and paramilitaries.

   INot only that. My mother’s younger sister’s children were also in the LTTE. And because of these problems and because I have travelled to Jaffna, Mannar and back on these two bases I had problems.”

4. However, the applicant contended that, in its decision record, the Tribunal only considered the first of the two separate bases for his claimed perceived association with the LTTE. There were “four reasons”, or bases, on which the applicant asserted that the Tribunal had failed to make a finding.

5. First, the applicant relied on, and took the Court to, [52] of the Tribunal’s decision record (at CB 129):

   “… He claims that the main reason he was targeted by the government and paramilitaries was his association with a person named “James”. However, he was unable to provide sufficient evidence regarding this person on which the Tribunal can be satisfied that he existed or that he had links to the LTTE, or that the applicant was targeted because of his association with him. The applicant claims that he had relatives in Jaffna who were associated with the LTTE, and he travelled to the LTTE controlled areas during the civil war, but again the evidence he could provide regarding these claims was vague and limited. The Tribunal has formed the view that if indeed the applicant was targeted for the reasons provided, and he had relationships with persons associated with the LTTE, he would know more about those persons and their alleged involvement with the LTTE”

6. It was the applicant’s contention that that paragraph revealed that the Tribunal was cognisant of, and had noted, that the applicant’s claim to be perceived to be involved with the LTTE arose not only from his association with “James”, but also from his familial ties. However, while noting that contention and, at its highest, making a comment on the nature of the evidence, the Tribunal failed to make a finding in relation to that claim. That is, that not only was the Tribunal’s articulation of that claim at [52] (at CB 129) brief, but it did not “seem to rise higher than an observation on the nature of the evidence.”

7. Second, that the applicant’s family’s alleged involvement with the LTTE was not subsumed in the Tribunal’s findings in relation to “James”. Specifically, the Tribunal’s findings at [52] (at CB 129) and [56] (at CB 130).

8. With reference to [52] (set out at [20] above), the applicant submitted that the Tribunal’s “view” that “… had he had relationships with persons associated with the LTTE, he would know more about those persons and their alleged involvement with the LTTE” was only said in relation to the applicant’s association with “James”. Not his family members.

9. Further, that the Tribunal’s finding at [56] (at CB 130) that the applicant’s claims were “fraudulent” was not a finding that related to, nor subsumed, the applicant’s claim in relation to his family members. Rather, that finding only related to the applicant’s claims: “… that in 2011 he and James were detained… that they were taken to prison… [and] that he was forced to flee the country because he faced life-threatening harm” ([56] at CB 130).

10. The applicant’s contention in relation to those two paragraphs ([52] (at CB 129) and [56] (at CB 130) was said to be supported by the transcript of the hearing before the Tribunal. [I note that the applicant initially submitted that the Tribunal’s decision record, and its reasoning contained therein, had to be read with the transcript of the hearing. In reply to the Minister’s oral submissions on this (see further below at [31]) the applicant submitted that the transcript simply “buttressed”, and put into context, the first basis advanced by the applicant (referred to as the “primary submission”).]

11. It was the applicant’s submission that, while the transcript revealed that there was “extensive questioning” about the applicant’s connection with James, there was “not a single question” concerning the applicant’s connection to family members who were members of the LTTE. In those circumstance, it was submitted that the Tribunal’s view at [52] (at CB 129), and finding at [56] (at CB 130), could only be referring to the applicant’s claim as it related to “James”. That is, that the Tribunal did not “address, touch or advert to the second claim”, being the applicant’s family members who were allegedly members of the LTTE.

12. The third “reason”, or basis, on which the applicant submitted that the Tribunal had failed to consider this particular aspect of his claims was that, other than the reference at [52] (at CB 129), nowhere in the “Findings and Reasons” section of the Tribunal’s decision record was the applicant’s claim in relation to his family members “adverted to, let alone considered or a finding made”.

13. Finally, the applicant submitted that the Tribunal’s failure to consider the second basis for his alleged perceived involvement with the LTTE could be inferred from the Tribunal’s investigation (or lack thereof) into the applicant’s familial relations and their involvement with the LTTE. In light of that, the applicant submitted that the Tribunal had “overlooked” this aspect of his claims.

14. In response, the Minister submitted that, contrary to the applicant’s complaint now before the Court, the Tribunal had made an “express and comprehensive rejection” of the applicant’s claims ([5] of the Minister’s written submissions).

15. In support of this submission, the Minister referred the Court to [51] (at CB 129) and submitted that the Tribunal’s finding expressed in that paragraph, that is that the applicant’s claims were not credible, related to all of the applicant’s claims and was an “overarching conclusion”. Further, that the Tribunal’s “view”, expressed in [52] (at CB 129) had to be seen in light of the Tribunal’s finding that preceded it. That is the Tribunal’s rejection of the credibility of the applicant’s claims to protections ([51] at CB 129).

16. Further, the respondent’s submitted that [52] (at CB 129) should not be “picked and passed”, nor read in a “tortured way” (presumably with reference to Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). Rather, when given its ordinary meaning, it was clear that the Tribunal dealt with both aspects of the applicant’s claim to have been perceived as having links to the LTTE. Specifically, that was said to be evident in the Tribunal’s use of plurals. For example, amongst others, the Tribunal found “… that the applicant’s evidence regarding his alleged links to the LTTE is vague and limited” ([52] at CB 129) [emphasis added]. It was the Minister’s submission that to infer that the Tribunal was only referring to “James” in [52] (at CB 129) would require “… some serious damage to the ordinary grammar of the sentences”.

17. Finally, in response to the applicant’s submission that the Tribunal’s decision record needed to be read with the transcript of the hearing, the Minister submitted that, as a matter of principle, what occurred at the hearing could not give rise to any inference as to what was, or was not, considered by the Tribunal. The hearing was, pursuant to s.425 of the Act, an opportunity for the application to give evidence and make submissions. It was not for purpose of the Tribunal informing the applicant of its thought processes, or consideration.

Consideration

1. The applicant’s complaint of legal error rested on the requirement on the Tribunal to consider the claims made by the applicant, in the manner explained in such cases as Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244.

2. The primary consideration in this case rested on the reading of the Tribunal’s decision record and whether, on such reading, the Tribunal had adequately addressed both of the applicant’s perceived links with the LTTE, or only the applicant’s relationship with “James”.

3. What should be remembered is that a Tribunal decision record is not meant to be dissected or generally read “overzealously” or “scrutinised with an eye finely attuned to error” (Wu Shan Liang). Such records are to be read wholistically and, at least, fairly.

4. However, in the current case, not even such a reading is required to reject the applicant’s complaint. A plain reading suffices. With reference to the Minister’s submissions as set out at [30] above, the Minister can rest easy that the Court was not enticed by the applicant’s submissions to commit grammatical vandalism on the Tribunal’s decision record. The decision record speaks, plainly, for itself.

5. First, the Tribunal correctly identified and understood that the basis for the applicant’s claim to fear persecutory harm on return to Sri Lanka was that he would be perceived by the authorities to have LTTE links (see, for example, [51] at CB 129).

6. Second, in his statement accompanying his protection visa application the applicant put forward two bases for this perception. The first, his links to business associates of his father whom he visited, one of whom “James”, was said to have “wide influence in the LTTE” (CB 65.9 to CB 66.3). The second, his “mother’s relatives in Jaffna were involved with the LTTE”. He travelled to Jaffna frequently and stayed with his cousins (CB 66.3 to CB 66.6). Instances of specific harm from the police and paramilitaries were said to arise from those links and the perception of him by the authorities.

7. In its analysis the Tribunal identified that the “main reason” he was targeted by the authorities and paramilitaries was because of the association with “James”. Two matters immediately arise.

8. The first matter is that, while such a finding may have been questionable if regard were had only to the applicant’s written statement, the delegate’s report of what occurred at the interview with the applicant (see, especially, at CB 89), and the transcript of the hearing with the Tribunal, plainly allow for the Tribunal to have made this finding. At the very least, it was a finding open to it on this material.

9. In particular, the transcript reveals that the applicant himself gave primacy to this claim (see, for example, at T4 when the Tribunal asked the applicant why he was “… a person of interest to the police and the paramilitaries…” (T4.3). His response was to relate, at some length, his father’s business activities, his travel to Jaffna for business reasons, and his staying with “James” (T4.3 to T7.8). While the applicant ultimately made reference to his: “… mother’s younger sister’s children were also in the LTTE…” (T7.9), no real detail beyond this familial relationship was provided.

1. The second matter, and a critical part of the answer to the applicant’s complaint before the Court, is that the reference by the Tribunal to the “main reason” plainly allows a recognition that there was another reason.

2. Third, that is made plainly in its analysis at [52] (at CB 129). The “structure”, or sequence, of analysis or thought in this paragraph, in my view, reveals that the Tribunal was cognisant of, and dealt with, both reasons for the claimed fear. Particularly when read in context of what surrounds it.

3. At [51] (at CB 129) the Tribunal set out the basis for its decision. Simply, it affirmed the delegate’s decision. That is, it found adversely to the applicant, because it did not find his claims to be credible. It gave four reasons for this in the succeeding four paragraphs ([52] at CB 129 – [55] at CB 130).

4. One of those reasons was that the Tribunal found that

   
   

   the: “… applicant’s evidence regarding his alleged links to the LTTE is vague and limited” (emphasis added). That is the first sentence at [52] (at CB 129). The Tribunal then goes on to explain that finding.

5. In relation to the “main reason” he advanced for being targeted because of his LTTE links, that is his association with “James”, the Tribunal found that the applicant was unable to provide “sufficient evidence” such that it could find that person even existed, let alone that he had LTTE links.

6. The very next sentence, both of itself, and certainly in context, provides the complete answer to the applicant’s complaint to the Court. The Tribunal noted the applicant’s claim that he had relatives in Jaffna who were associated with the LTTE and that he travelled to LTTE controlled areas during the civil war. But the Tribunal found that in this regard his evidence was, “again”, “vague and limited”.

7. The Tribunal then reasoned that, if the applicant was targeted for the reasons (note plural) he gave and had “relationships” with persons (note again plural), he would know more about them and, relevantly, “their alleged involvement with the LTTE…” ([52] at CB 129).

8. That the Tribunal then makes reference only to the situation involving “James” in the next sentence, that is, that the applicant did not even know his full name “… despite claiming that he spent considerable time with this person over many years…”, cannot, on any reading, be seen as limiting what proceeds it as being references only to the situation involving “James”. The Tribunal plainly, and merely, was seeking to emphasise, with yet another example, the paucity of the applicant’s evidence.

9. In all, therefore, the Tribunal understood the extent of the applicant’s claims and dealt with both bases on which he claimed to fear harm because of perceived LTTE links. The sole ground of the application, as amended, is not made out.

10. The applicant’s reference in submission to other parts of the transcript relating to the Tribunal’s questioning as to why the paramilitaries were interested in the applicant (see at T9) do nothing to alter the fact that the Tribunal understood the applicant’s claim that he was of interest to the paramilitaries, in part, because of his mother’s family.

11. It is important to note that, even here where the applicant reproduces the transcript in his written submissions (see [16] of applicant’s submissions), the part highlighted shows the applicant’s evidence in relation to the question as to why the authorities would suspect him, said no more than “… because relatives on my mother’s side were LTTE”. As the Tribunal found, the applicant’s evidence was “vague” and, relevantly here, “limited”. A finding plainly open to the Tribunal on what was before it.

Conclusion

1. The ground as pleaded, and pressed, in the amended application does not reveal jurisdictional error on the part of the Tribunal. Therefore, accordingly, the application, as amended, should be dismissed. I will make an order to that effect.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  19 November 2012