SZRCN v Minister for Immigration

[2012] FMCA 597

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRCN & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 597

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Tribunal failed to consider an aspect of the applicant’s claim – whether Refugee Review Tribunal made findings without sufficient evidentiary basis – whether impossibility of relocation was an independent claim – whether relocation was reasonable and practicable – no failure to consider – no findings without sufficient evidentiary basis – Refugee Review Tribunal not obliged to consider relocation – even if Refugee Review Tribunal did consider relocation, it did so according to law – no jurisdictional error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8

NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660

First Applicant: SZRCN

Second Applicant: SZRCO

Third Applicant: SZRCP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 208 of 2012

Judgment of: Emmett FM

Hearing date: 6 July 2012

Date of Last Submission: 6 July 2012

Delivered at: Sydney

Delivered on: 12 July 2012

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Rasan T Selliah & Associates

Appearing for the Respondents: Mr M Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 31 January 2012, is dismissed.

2. The first and second named applicants pay the costs of the first respondent fixed in the amount of $5,400.

NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 208 of 2012

SZRCN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 January 2012 and handed down on 4 January 2012.

2. The first named applicant is the wife of the second named applicant and they are the parents of the third named applicant. Whilst these reasons address the applications of all named applicants, because the second and third named applicants’ claims are dependent on those of the first named applicant (“the Applicant”), these reasons refer only to the Applicant.

3. The Applicant claims to be a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity.

4. The issues in this case are whether the Tribunal failed to consider an aspect of the Applicant’s claim, whether the Tribunal made findings without sufficient evidentiary basis, whether the impossibility of relocation was an independent claim put to the Tribunal, and whether the Tribunal was obliged to consider whether the Applicant was able to relocate within Sri Lanka. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.

5. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

1. On 6 February 2011, the Applicant arrived in Australia having departed legally from Sri Lanka on a passport issued in her own name and a tourist visa issued on 5 May 2010.

2. On 16 March 2011, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

3. On 27 May 2011, the Delegate refused the Applicant’s application for a protection visa.

4. On 15 June 2011, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 3 January 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 31 January 2012, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “… owing to a 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 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

4. Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of her protection visa application in which she stated: 

   a)She is from Mullaitivu, an area which had been under the effective control of the Liberation Tigers of Tamil Eelam (“LTTE”) until their defeat in 2009.

   b)She and her family underwent “terrible hardships and harassments” from the Sri Lankan security forces, on suspicion of having LTTE connections.

   c)She and her brother were also threatened by other Tamil militant groups who opposed the LTTE and supported the government.

   d)Their lives and education were badly affected by the fighting between the LTTE and government forces.

   e)As a student, she was forced to do various work for the LTTE.

   f)In April 1988, she and her brother were “severely harassed” by members of the Indian Peace Keeping Force (“IPKF”). IPKF members stormed into her house, accused them of planting landmines and threatened to shoot them. The IPKF arrested her brother but before they could take him away the LTTE had surrounded the house and had started shooting at the IPKF. Four IPKF members were killed, which angered them, and as a result she was given several slaps and shaken by her hair, while her brother was “badly assaulted”.  Later that night, the LTTE came and questioned her and her brother and accused them of telling the IPKF about the landmines.

   g)On 20 January 1989, a IPKF sentry point near her house came under attack from the LTTE. IPKF soldiers were fighting the LTTE from “all around” the house for several hours. The IPKF later threatened to shoot them and said that they had information that she and her family were LTTE supporters.

   h)The LTTE suspected her and her family of being IPKF informants and her father was questioned by the LTTE a number of times.

   i)After the fighting between the LTTE and the Sri Lankan army began in 1990, there were a number of air raids on an LTTE camp near her house and she was forced to hide in a bunker.

   j)Her cousin was killed in an air raid on her grandmother’s house, which had been taken over by the LTTE.

   k)From September 1992, she was employed by the Rehabilitation Ministry as a clerk.

   l)She worked there until March 1995, when she was stopped going to work because she was “caught between the orders of the Tigers and the warnings of [her] superiors”.

   m)LTTE cadres, one of whom had attended school with her, forced her under threat of abduction, to give them copies of government financial documents and other information.

   n)She was also sometimes forced to translate these documents for them. When her superiors learned of this, she was warned.

   o)She left her job after the LTTE had demanded important financial documents. She did not have the documents the LTTE demanded of her and was afraid of stealing them, so she fled to Colombo.

   p)She was arrested by the police the day after she arrived in Colombo on suspicion of being a LTTE member. She was forcibly given an injection by the police, could not recollect the next two to three days and felt that she had been “sexually mistreated and abused”.  

   q)She fled to Switzerland and arrived there on 18 April 1995.

   r)While in Switzerland, on two or three occasions she received telephone calls alleging that she was involved with the LTTE and threatening to report her to Swiss authorities.

   s)In December 2010, she received a telephone call from her sister informing her that their mother was ill. She returned to Sri Lanka and within half an hour of her arrival at her sister’s house, a group of men rushed in, including a soldier and a policeman, and said that they had information about her “LTTE activities”. She was forced into a van, gagged and taken away for questioning.

   t)She was taken to a room and interrogated about her involvement with the LTTE. When she said that she did not have anything to do with the LTTE she was slapped hard on the face several times and told not to tell “blatant lies” as they knew all about her LTTE connections. One of them also put his arms around her and “began to grope around”. She tried to explain her supposed LTTE links but they would not listen and insisted that she was a LTTE cadre. She was told that they had been instructed to eliminate people like her but that if she signed a statement confessing to their allegations, her life would be spared. When she indicated that she would refuse to sign a confession, they slapped her a number of times and she fainted. She was later raped by one of these men.

   u)Her sister and husband paid for her release.

   v)She returned to Switzerland on 7 January 2011.

   w)Soon after her return to Switzerland, three representatives of the Eelam People’s Democratic Party (“EPDP”) came to her house and demanded that she pay 10,000 Swiss Francs into their anti-LTTE fund. They threatened to tell the Swiss police that she was a LTTE cadre. She was given one week to pay.

   x)They came a week later, collected the money and told her that she would have to contribute money regularly or they would inform the Swiss authorities of her LTTE connections.

   y)As she was frightened, she made use of the Australian visa that she had obtained in 2010 to visit her brother.

The Delegate’s decision

1. On 16 May 2011, the Applicant attended an interview with the Delegate.

2. On 27 May 2011, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate was not satisfied as to the plausibility or veracity of the Applicant’s claims of abduction and assault in Sri Lanka on her latest return visit. The Delegate also found the Applicant’s claims of secondary persecution in Switzerland to be unfounded and without a Convention nexus. The Delegate found that Switzerland could afford the applicants effective protection.

The Tribunal’s review and decision

1. On 15 June 2011, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided further documents in support of her review application.

3. On 26 September 2011, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 31 October 2011 to give oral evidence and present arguments.

4. On 31 October 2011, the applicants and their migration agent attended the Tribunal hearing. The Applicant gave evidence and the migration agent provided pre and post hearing written submissions.

5. The Tribunal’s decision record commenced with a summary of the relevant law. The Tribunal summarised the Applicant’s claims in her statement provided in support of her protection visa application and the Applicant’s evidence at the interview with the Delegate.

6. The Tribunal summarised the Applicant’s migration agent’s written submission, dated 28 October 2011, and noted inadvertent mistakes identified by the migration agent in the Applicant’s statement which were to be corrected at the hearing before the Tribunal. The Applicant’s migration agent also submitted further information in support of the Applicant’s claims, including various media releases, country information, press reports and information from the Tamilnet website.

7. The Tribunal summarised the evidence given by the Applicant at the hearing, including various exchanges it had with the Applicant. The Tribunal put matters of concern it had about the Applicant’s claims to the Applicant and noted the Applicant’s responses. The Tribunal also put to the Applicant certain country information and invited the Applicant to comment.

8. In particular, the Tribunal put to the Applicant that much of the information provided by her migration agent referred to incidents which had taken place in the north and the east of Sri Lanka and not in Colombo and that circumstances had improved. The Tribunal put to the Applicant that country information suggested that Sri Lankans originating from the north of the country were no longer in need of international protection. The Tribunal also put to the Applicant country information that suggested that none of the applicants fitted the potential risk profiles, even though they were from the north.

9. The Tribunal put to the Applicant that it had difficulty accepting she was telling the truth about what happened to her on her last visit to Sri Lanka and other aspects of her claims, both oral and written. The Tribunal put to the Applicant that it may not accept that there was a real chance that she would be persecuted because she was a Tamil or for any imputed political opinion of support for the LTTE.

10. The Tribunal gave the Applicant’s migration agent time after the hearing to make further submissions after confirming with the Applicant if there was anything further she wished to say.

11. The Tribunal summarised further written submissions received from the Applicant’s migration agent on 16 November 2011 and noted further documents provided by the migration agent, including three bank receipts for withdrawals from a loan in Swiss Francs in January 2011.

12. The Tribunal also noted the written submission by the Applicant’s migration agent that relocation of the applicants to Colombo was not reasonable and practicable because the Applicant had been persecuted in Colombo, she and her husband did not speak Sinhalese and that paramilitary Tamil groups were operating in Colombo.

13. The Tribunal found the Applicant not to be a witness of truth and rejected her claims of what happened to her on her last visit to Sri Lanka and the problems she claimed she and her husband had with the EPDP in Switzerland before coming to Australia. The Applicant did not produce any evidence to support such claims, particularly any police report of the extortion demand, and the Tribunal did not accept the Applicant’s explanation as to why no police report had been filed by her. The Tribunal found that the Applicant had carefully memorised her claims as set out in her statement but was unable to expand upon her claims or provide cogent explanations. The Tribunal found that if the Applicant had been suspected of involvement in the LTTE, including any fundraising, she would have been arrested at the airport on her return to Sri Lanka.

14. The Tribunal also found the Applicant changed her evidence during the hearing. The Tribunal found that the applicants had come to Australia because the Applicant’s brother lives here and found “this is a very clear case of forum shopping”. The Tribunal did not accept that the applicants had a well-founded fear of persecution in Switzerland and noted that the Applicant returned to Sri Lanka on three occasions between 2009 and 2011. The Tribunal found that the Applicant and her husband travelled on Sri Lankan passports in their own names which the Tribunal found indicated that neither the Applicant nor her husband had a genuine fear of persecution upon return to Sri Lanka. As stated above, the Tribunal rejected the Applicant’s claims of what happened to her upon her most recent return to Sri Lanka.

15. However, the Tribunal did accept that the Applicant was forced to teach at a LTTE orphanage and to give copies of certain government financial documents to a member of the LTTE. Nevertheless, the Tribunal found that country information suggested that almost everyone who lived in areas under the control of the LTTE had to assist the LTTE in some way, and that the Sri Lankan government was aware of this and distinguished between those forced to assist the LTTE and those actually involved in militant activities.

16. The Tribunal rejected the Applicant’s claims not to be able to live in Colombo for the reasons given. The Tribunal did not accept that the Applicant would be persecuted by paramilitary groups in Colombo and rejected her claims to persecution in Colombo on her most recent visit to Sri Lanka. The Tribunal was also not persuaded that because neither the Applicant nor her husband did not speak Sinhalese that they could not settle in Colombo. The Tribunal accepted that an inability to speak Sinhalese may present an obstacle to employment in the public sector, however, found that access to employment and education should not pose systematic problems for Tamils whom it found had equal access to the job market in the private sector.

1. The Tribunal did not accept that there is a real chance that the Applicant or her husband would be persecuted for reasons of any imputed involvement with the LTTE if they were to return to Sri Lanka now or in the reasonably foreseeable future. Nor did the Tribunal accept that the applicants would be at any risk of persecution in Sri Lanka as failed asylum seekers based on country information advising that there are no procedures in place in Sri Lanka to identify failed asylum seekers and there is no evidence to suggest that they are treated any differently from any other deportees.

2. Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The Applicant was represented before this Court by Mr Kumar, of counsel.

2. Mr Kumar confirmed that the Applicant relied on the grounds contained in an amended application filed on 17 April 2012 as follows:

   “Ground 1

   The Tribunal committed jurisdictional error when it failed to take into account documentary evidence submitted by the Applicant post-hearing (CB 186-188)

   Particulars

   The Applicant submitted documentary evidence cited above to the Tribunal regarding certain payments which the Tribunal (the material that was before the Tribunal) failed to take into account and only considered evidence given at the hearing. By failing to consider the documents the Tribunal committed jurisdictional error.

   Ground 2

   The Tribunal committed jurisdictional error when it failed to consider activities of (Presidential Taskforce) PTF (CB 184) when considering the finding if there was real chance of persecution.

   Particulars

   The Applicant submitted that there was concern owing to the activities of PTF (CB184), the Tribunal has not considered, the Tribunal did not consider the activities of PTF in resolving the issue of well-founded fear (only considering prior threats).

   Ground 3

   The Tribunal stated (CB237, RRT Decision p34 at [154]) ‘…However, having regard to information available to me, I consider that Sri Lankan authorities are capable of distinguishing between the people like applicant … and people who were involved in militant activities.’ The Tribunal made findings in the absence of evidence and/or logically probative evidence.

   Particulars

   The evidence relied upon by the Tribunal and discussed at CB237 ([152] – [153]), do not support the current situation of the finding and/or are logically probative in supporting the conclusion.

   Ground 4

   The Tribunal stated (CB239, RRT Decision 36 at [166] ‘… Having regard to all evidence before me,…I consider that it would be reasonable … to settle in Colombo.’ The Tribunal committed jurisdictional error made findings be having regard to the entirety of issues and/or failing to address all relevant matters in relation to the applicant family.

   Particulars

   The evidence relied upon by the Tribunal and discussed at CB237 [156] to support independent internal recollection, do not support the relocation findings and/or do not address at the relevant matters (such as family network) but relies on the Tribunal’s finding on ‘well founded fear’ rather than addressing the relevant issues supporting the conclusion.”

Ground 1

1. Mr Kumar withdrew any reliance by the applicants on ground 1 at the commencement of his submissions.

Ground 2

1. In support of ground 2, Mr Kumar submitted that the Tribunal had failed to consider a claim by the Applicant to fear persecution from the Presidential Taskforce (“PTF”) if returned to Sri Lanka.

2. Mr Kumar referred to a submission by the Applicant’s migration agent where he stated as follows:

   “The PTF has an implicit policy of giving preference to people not associated with the LTTE. A government official told an international aid worker in the north: ‘If I have a widow of an LTTE cadre and a widow who is clearly just Tamil, I’ll pick the latter’. This approach will only increase levels of distrust that already are high.”

3. I accept the submission of the first respondent that the above statement is no more than a summary by the applicants’ migration agent of country information provided by him. Mr Kumar conceded that there was no express or other claim by the applicants of such a nature.

4. The solicitor for the first respondent, Mr Alderton, referred the Court to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE (No 2)”) where an appellant contended that, although not expressly articulated, the Refugee Review Tribunal was obliged to consider a claim of want of effective state protection against persecution by a pro-government group in Sri Lanka. Black CJ, French and Selway JJ, at 22, found that no such claim had emerged on the material before the Refugee Review Tribunal and did not represent in any way “a substantial clearly articulated argument relying upon established facts”.

5. Similarly, in the case before this Court there is no clearly articulated argument relying upon established facts of a fear of persecution by the applicants from the PTF. Indeed, as stated above, the reference to the PTF is no more than a summary of evidence upon which the applicants relied in support of their claims.

6. Further, I accept the submission of the solicitor for the first respondent that, even if a claim about a fear of persecution from the PTF was made, a rejection of that claim was subsumed in the Tribunal’s findings of greater generality in a rejection of the Applicant’s claims of a fear of persecution for any imputed involvement with the LTTE if the Applicant’s were to return to Sri Lanka now or in the reasonably foreseeable future (see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (“WAEE”) at [47]).

7. Accordingly, ground 2 is not made out.

Ground 3

1. In support of ground 3, Mr Kumar submitted that there was no evidence before the Tribunal to enable it to find that Sri Lankan authorities are capable of distinguishing between people like the Applicant and people involved in militant activities.

2. Further, in his written submissions, although not referred to in oral submissions, Mr Kumar contended that such a finding was affected by illogicality and irrationality because there is no evidence to allow the Tribunal to make the finding referred to above. In support, Mr Kumar referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

3. However, in the Findings and Reasons section of the decision record the Tribunal identified the evidence upon which its finding was based and stated as follows:

   “153. As I put to the applicant, the information available to me suggests that almost everyone who lived in areas under the control of the LTTE had to assist the LTTE in some way, that the Sri Lankan Government is well aware of this and that it distinguishes between people who were forced to assist the LTTE and people who were actually involved in militant activities (Arjuna Ranawana, ‘Caught in Limbo’, Asiaweek, 7 November 1997, CX28740; Anthony David, ‘Jaffna: Picking up the bits and pieces’, The Sunday Times (Sri Lanka), 23 June 1996, CX17517).

   …

   154. As referred to above, in their submission dated 16 November 2011, the applicant’s representatives said that the Sri Lankan authorities and pro-government militant groups would not allow people whom they suspected of having LTTE links to go free merely because their alleged links or activities had taken place very many years ago. However, having regard to the information available to me, I consider that the Sri Lankan authorities are capable of distinguishing between people like the applicant who were forced to assist the LTTE while living in areas under the LTTE’s control and people who were actively involved in militant activities.”

4. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

5. The country information was capable of grounding the finding made by the Tribunal and cited above. Further, it is clear that the Tribunal put to the Applicant for comment the information that the Tribunal found suggested that Sri Lankan authorities are capable of distinguishing between people forced to assist the LTTE, like the Applicant, and people who are actually involved in militant activity.

6. In the circumstances, the Tribunal’s finding was open to it on the evidence and material before it and for the reasons it gave and was neither irrational nor illogical.

7. I accept the submission of the solicitor for the first respondent that ground 3 is no more than a complaint about the Tribunal’s finding inviting merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow.

8. Accordingly, ground 3 is not made out.

Ground 4

1. Ground 4 asserts that in finding that it would be reasonable for the Applicant to settle in Colombo, the Tribunal had failed to address all relevant matters relating to the Applicant.

2. Mr Kumar referred to the following finding by the Tribunal:

   “158. As I put to the applicant, I consider it reasonable to expect that if she and her husband and their daughter return to Sri Lanka they will settle in Colombo where her sister and her sister’s husband live. In their submission dated 16 November 2011 the applicant’s representatives submitted that relocation to Colombo was not reasonable and practicable in the circumstances of the case. They submitted that the applicant had been persecuted in Colombo, that she and her husband did not speak Sinhalese and that paramilitary Tamil groups were operating in Colombo.

   159. I accept that paramilitary groups operate in Colombo but for the reasons given above I do not accept that there is a real chance that the applicant will be persecuted by paramilitary groups if she returns to Colombo now or in the reasonable foreseeable future. For the reasons given above I do not accept that the applicant was persecuted in Colombo on her most recent visit to Sri Lanka and she does not claim that she had any problems on her previous two visits.

   …

   161. I do not consider that the fact that the applicant and her husband do not speak Sinhalese means that it would not be reasonable, in the sense of practicable in all the circumstances of the case (see Randhawa, cited above, per Black CJ at 440-1), to expect them to settle in Colombo. I accept that an inability to speak Sinhalese presents an obstacle to employment in the public sector in Sri Lanka, because candidates must pass a test in that language. However, as I put to the applicant, UNHCR told the Danish Immigration Service in 2010 that the general human rights situation in Colombo as regards living conditions, access to employment and education should not pose systematic problems for Tamils and the British High Commission likewise said that Tamils had equal access to the job market in the private sector (Danish Immigration Service, Human Rights and Security Issues concerning Tamils in Sri Lanka – Report from Danish Immigration Service’s fact-finding mission to Colombo, Sri Lanka, 19 June to 3 July 2010, Copenhagen, October 2010, page 31).”

3. Mr Kumar submitted that the Applicant’s claim not to be able to live in Colombo was an independent claim. Mr Kumar submitted that the Tribunal’s consideration of that claim was part of the Applicant’s overall claims. Mr Kumar submitted that the Tribunal had erred in its consideration of that claim by the Applicant in that the Tribunal has not addressed whether any risk of harm is localised.

4. Mr Kumar submitted that the Tribunal should have sought appropriate information from the Applicant, in particular, the mobility of the applicants, the financial resources of the applicants and their ability to relocate to other parts of Sri Lanka; and to consider those factors in context of the applicants’ social group and whether the harm it found to be localised could be avoided.

5. Mr Kumar further submitted that none of the applicants had lived in Colombo and therefore it was irrelevant to consider whether or not the applicants could reside in Colombo. Mr Kumar submitted in his written submissions that it was not sufficient for the Tribunal to consider only whether the Applicant could obtain employment if the Applicant was to return to Sri Lanka and that if the Applicant was to relocate for a Convention reason then the Tribunal was obliged to consider all of the circumstances of the individual applicants.

6. For the following reasons, the submissions of counsel for the Applicant are rejected.

7. The Tribunal would only be obliged to consider internal relocation if the Tribunal had accepted that the Applicant’s fear of harm is well-founded but that such harm is localised to a particular area (see SZKMS v Minister for Immigration and Citizenship [2008] FCA 499). However, the Tribunal was not satisfied that the Applicant would suffer persecution for a Convention related reason anywhere in Sri Lanka. Moreover, the Tribunal did not accept that any fear that the Applicant may have of the LTTE was well-founded, if she was to return to Sri Lanka. In any event, a rejection of the Applicant’s claim to fear harm in Colombo is subsumed in the Tribunal’s finding that the Applicant was not at risk of Convention related persecution anywhere in Sri Lanka (see WAEE)

8. A fair reading of the Tribunal’s decision record makes clear that the Tribunal was considering whether the Applicant could relocate to Colombo in response to the claim by the Applicant that it was not practicable to settle in Colombo. The Applicant’s migration agent had submitted to the Tribunal that relocation to Colombo was not reasonable and practicable for the applicants in the circumstances because the Applicant had been persecuted in Colombo, the Applicant and her husband did not speak Sinhalese, and that paramilitary Tamil groups were operating in Colombo.

9. In relation to those claims, the Tribunal was not satisfied that the Applicant had been persecuted in Colombo. The Tribunal did not accept that the fact that the Applicant and her husband do not speak Sinhalese was a reason why it was not practicable for them to settle in Colombo. The Tribunal found that they would be able to access employment and education with equal access to the job market in the private sector. Based on country information before it, the Tribunal was not satisfied that the Applicant would be persecuted by paramilitary groups in Colombo and noted that the Applicant’s migration agent had referred to such incidents in the north and east of Sri Lanka, not in Colombo.

10. Further, the Tribunal noted that the Applicant’s sister lived in Colombo and that the Applicant has stayed with her sister when she has visited Colombo in the last three years.

11. Whilst the Tribunal used the language of “relocation” in considering whether it was reasonable, in the sense of practicable in all the circumstances of the case, for the applicants to settle in Colombo, it did so in response to the express claim by the Applicant’s migration agent that relocation to Colombo was not reasonable and practicable for the applicants in the circumstances of the case.

12. The Applicant’s claim that the Tribunal should have sought more information from the Applicant about her claims in order to assess whether it was reasonable for the Applicant to settle in Colombo, misconstrues both the nature of the Applicant’s claim and the duty of the Tribunal in investigating the Applicant’s claims. However, as stated above, the Tribunal was not considering whether the Applicant’s could relocate to Colombo, it was responding to the Applicant’s claim that they could not.

13. Further, it is well established that there is no general obligation on a Tribunal to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

14. Even if the Tribunal was intending to consider unnecessarily whether the Applicant could relocate, it did so according to law. In considering whether internal relocation is reasonable, consideration must be given to the practical realities facing the applicants (NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] per Branson J).

15. The Tribunal considered the particular circumstances of the Applicant and concluded that it was reasonable, in the sense of practicable, for the Applicant to relocate to Colombo. Those findings were open to it on the evidence and material before it and for the reasons it gave.

16. In addition to the reasons provided by the Applicant as to why she could not settle in Colombo, and to which I referred to above, the Tribunal considered the Applicant’s ability to find employment, the ability of the third applicant daughter to attend school and the general security situation in Sri Lanka. None of those matters were express complaints made by the Applicant. However, if the Tribunal was required to consider the issue of relocation, those matters may have been relevant to the broader consideration of the practical realities that the applicants may face if they were to relocate to Colombo.

17. Further, I accept the submission of the solicitor for the first respondent that the Tribunal’s relocation findings provide an independent basis to support its decision. Alternatively, any error in the Tribunal’s consideration of relocation would not affect the validity of the Tribunal’s conclusion that the Applicant does not have a well-founded fear of persecution for a Convention related reason (SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [128] per Tracey and Foster JJ; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] per North J; and SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23] per Sackville J).

18. Accordingly, ground 4 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support, including pre and post written submission from the Applicant’s migration agent. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  12 July 2012