FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRFZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 632 |
| MIGRATION – Judicial review of Independent Merits Review of refugee claims of offshore entry person – young Tamil man from Jaffna – no error of law or procedural fairness found – application dismissed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36(2), 46A |
| Applicant: | SZRFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTINE LONG, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 547 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 16 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Bartos |
| Solicitors for the Applicant: | Allens |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs fixed in the amount of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 547 of 2012
| SZRFZ |
Applicant
And
| MINISTER FOR IMMIGRATION &… |
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Details
- Case
- [2012] FMCA 632
- Decision Date
CaseChat Overview and Summary
In SZRFZ v Minister for Immigration, the applicant, a Tamil individual from Sri Lanka, sought refugee status on the basis of his fear of persecution due to his ethnicity and imputed political opinions. The applicant claimed that he had fled Sri Lanka in 2007 due to persecution by the Sri Lankan Army and paramilitary groups, particularly because of his perceived support for the Liberation Tigers of Tamil Eelam (LTTE). The case involved a review of the decision by the Minister for Immigration to refuse the applicant's application for a protection visa. The applicant's legal representatives submitted that the applicant's fear of persecution was well-founded, citing instances of violence and persecution against Tamils in Sri Lanka, as well as the lack of safe havens for Tamils within the country.
The primary legal issues before the court were whether the applicant had a well-founded fear of persecution if returned to Sri Lanka, and whether the Minister's decision to refuse the application for a protection visa was lawful and reasonable. The court needed to assess the credibility of the applicant's claims and the evidence presented, including the country information and the applicant's personal history. The court also had to determine whether the applicant's fear of persecution was based on his Tamil ethnicity and imputed political opinion, and whether these factors would expose him to a real chance of persecution if he were to return to Sri Lanka.
The court examined the evidence provided by the applicant, including his personal history and the country information, which indicated ongoing persecution of Tamils in Sri Lanka. However, the court also considered the applicant's ability to enter and exit Sri Lanka without difficulty, as well as the general conditions for Tamils in Sri Lanka as reported by various sources. The court found that while the applicant's claims of past persecution were credible, there was insufficient evidence to support the claim that he would face a real chance of persecution if he returned to Sri Lanka. The court concluded that the Minister's decision to refuse the application for a protection visa was reasonable, based on the evidence before the court.
The court dismissed the application and ordered the applicant to pay the Minister's costs in the amount of $6,471. This decision was based on the court's finding that the applicant did not meet the criteria for a protection visa, as his fear of persecution was not sufficiently substantiated by the evidence.
The primary legal issues before the court were whether the applicant had a well-founded fear of persecution if returned to Sri Lanka, and whether the Minister's decision to refuse the application for a protection visa was lawful and reasonable. The court needed to assess the credibility of the applicant's claims and the evidence presented, including the country information and the applicant's personal history. The court also had to determine whether the applicant's fear of persecution was based on his Tamil ethnicity and imputed political opinion, and whether these factors would expose him to a real chance of persecution if he were to return to Sri Lanka.
The court examined the evidence provided by the applicant, including his personal history and the country information, which indicated ongoing persecution of Tamils in Sri Lanka. However, the court also considered the applicant's ability to enter and exit Sri Lanka without difficulty, as well as the general conditions for Tamils in Sri Lanka as reported by various sources. The court found that while the applicant's claims of past persecution were credible, there was insufficient evidence to support the claim that he would face a real chance of persecution if he returned to Sri Lanka. The court concluded that the Minister's decision to refuse the application for a protection visa was reasonable, based on the evidence before the court.
The court dismissed the application and ordered the applicant to pay the Minister's costs in the amount of $6,471. This decision was based on the court's finding that the applicant did not meet the criteria for a protection visa, as his fear of persecution was not sufficiently substantiated by the evidence.
Orders
Orders of the court
1.
The application is dismissed.
2.
The applicant must pay the first respondent’s costs fixed in the amount of $6,471.
Background
Background to the litigation
The applicant’s lawyers provided a written submission to Ms Long on 22 September 2011, shortly before her own interview with the applicant. At its commencement, they summarised his refugee claims and history: Client’s Background … The claims put forward by the Applicant are contained in his statement in support of his application for Refugee Status Assessment and as set out in the body of this submission, in which it is indicated that his fear of persecution is based on his Tamil ethnicity and his imputed political opinion as a supporter of the LTTE. Persecution arising from race and imputed political opinion The Applicant fears persecution from the Sri Lankan Army (SLA) and paramilitary groups such as the Karuna Group, due to his Tamil ethnicity and his perceived support of the LTTE. The Applicant first fled Sri Lanka in March 2007 because his life was in danger. The major incident that caused him to flee took place in 2005, following his arrest and the arrest of his father and his subsequent torture. They were detained after the SLA found an arms cache near their home. The SLA suspected them of either direct involvement in the storage of those weapons, or that they would have information about those who had stored weapons in that place. Later in the same year, five Tamil tigers were killed by the SLA at a nearby LTTE hideout. The Applicant was suspected generally of being an LTTE supporter. The Applicant claims that the area that his family came from was a centre of the Tamil Tiger regime. This was one of the main reasons why he was suspected by the authorities of being a member of the LTTE. The Applicant believes that he will be persecuted if he is returned to Sri Lanka. That persecution will be inflicted by the Sri Lankan army or through other Para-military organisations such as the EPDP. There is well founded evidence that the government of Sri Lanka is using such Para-military groups as agents of terror against the Tamil people (see pages 3&4 below). The Applicant also states that the country information relied upon by the Case Officer in her RSA Assessment is wrong and untrue. He claims that Tamils are still being pursued, kidnapped, raped and killed in Sri Lanka by the authorities for no other reason other than their ethnicity and imputed political involvement with the LTTE. He claims that the Sri Lankan Government is giving a good report on the state of things in Sri Lanka to simply keep up appearances. The Applicant does not believe that he had any other choice but to flee Sri Lanka because he feared for his life. He claims that he will be killed by the authorities in his home country because they still suspect him of being a supporter of the LTTE owing to his Tamil ethnicity. The lawyer’s submission then set out extracts from country information supporting generic submissions that “persecution of the Tamils persists”, that “returned Tamil asylum seekers have been detained and/or tortured upon their return to Sri Lanka”, and that “there are no safe havens for Tamils within Sri Lanka”. Their submission concluded: Conclusion Collectively, all the preceding extracts illustrate that the situation in Sri Lanka for Tamils is dangerous. Accordingly, on the facts before us and the Applicant’s submission of the events surrounding his case, there is little doubt that he holds a well‑founded fear of persecution based on his race and imputed political involvement if he was to return to Sri Lanka.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The lawyer’s submission then set out extracts from country information supporting generic submissions that “persecution of the Tamils persists”, that “returned Tamil asylum seekers have been detained and/or tortured upon their return to Sri Lanka”, and that “there are no safe havens for Tamils within Sri Lanka”. Their submission concluded: Conclusion Collectively, all the preceding extracts illustrate that the situation in Sri Lanka for Tamils is dangerous. Accordingly, on the facts before us and the Applicant’s submission of the events surrounding his case, there is little doubt that he holds a well‑founded fear of persecution based on his race and imputed political involvement if he was to return to Sri Lanka. A transcript of Ms Long’s interview with the applicant and his agent is in evidence before me. It generally confirms the accuracy of a detailed account included by Ms Long in her report. In particular, I accept her description of the following evidence given by the applicant: 48.The reviewer confirmed with the claimant that he had had no difficulties entering and exiting Sri Lanka and asked him if he had any difficulties getting his passport and visa/s. He said that he had no problems because the agent accompanied him. He said that they looked for him in Jaffna and he would have problems there; there was a threat after 2007. The claimant said that if he shows his ID in Colombo the Army will take him; they will suspect him. He said that two days ago 200 people were arrested in Colombo. The reviewer told the claimant that it was of concern that he has exited his country twice and also re entered his country and now he says that he cannot return there. He said that he paid money to an agent and if he goes there alone he will be arrested. 49.The reviewer asked the claimant more about what happened the first time he had trouble from authorities when he was in Jaffna. The claimant said that there was an Army camp close to their home and weapons were found close to their home. The Army suspected that he had contact with the LTTE. This incident occurred in 2005/2006 when he was doing his last exams. They arrested him and beat him in 2006 but the weapons incident happened in 2005. During that period a lot of innocent people were killed and there are reports of this; although his family is not specifically mentioned it happened in his village. He was suspected because he was a young Tamil male. They caught him and beat him and he was scared and left the village. The reviewer queried whether he left the village in 2007. He confirmed that he went to Colombo in 2007. The reviewer asked the claimant if this meant that he stayed in his village after this incident for about a year. The claimant agreed he stayed in his village until he finished his exams at the end of 2006 and then he went to Colombo as if he had not finished his exams all the rest of his study would be wasted. The reviewer asked him if he knew whether anyone else was harmed in relation to the weapons incident. He said that lots of people were beaten and killed and also lots have left Sri Lanka. His father had problems although he is older. The reviewer pointed out that in his RSA he states that he was tortured and his father was arrested. The claimant said that his father was arrested but released because he is older. The reviewer asked the claimant how long he was held after the weapons incident. He said that he was held in custody for one day and the CID and paramilitaries followed him as he was at school. After the weapons incident he was beaten and let go and that happened to all the youths. The claimant said that “it happens like that and paramilitaries shoot them”. The claimant said that his father had to go to the Army “and sign” but he cannot remember if he did so. 50.The reviewer asked the claimant why he cannot return to his country given that his father who also had difficulties at that time, and his other family members are still living there. The claimant said that he is young and the Army is after him and will try to kill him. The other family members are also having problems but they are managing. There is the normal checking and rounding up but his family is managing. If he returns they (the Army/authorities) will ask him why he has returned after being away for five years and will associate him with the Tigers. The claimant said that the Sri Lankan authorities are giving false reports that there are no problems for Tamils in Sri Lanka but Tamils are dying in Sri Lanka. Lots of Tamils in India have refused to return there and some Tamils returning from London were shot. 51.The claimant said that he obtained his A levels in Sri Lanka and has done some work painting in India and he also worked in a hotel in Malaysia for six months, cleaning. He speaks a little English. 52.The reviewer confirmed with the claimant that he is claiming that he cannot return to Sri Lanka because he fears harm there because he is a young Tamil male from Jaffna and because of his background there as he described. The claimant said that he is Tamil and has the background that he described and also the Army camp is close to where he lives. He referred to a report in an Australian newspaper, Green Left Weekly, about the difficulties for all Tamils returning to Sri Lanka. The claimant said that UNHCR representative/s who have come to the camp/centre and Catholic priests “here” have said that Tamils cannot return to/live in Sri Lanka. 53.The reviewer asked the claimant if he is claiming to fear harm in Sri Lanka because he has claimed asylum in Australia. He said that he will be killed if he returns but not because of that; because he is Tamil they will suspect him of being LTTE. If he returns after 5 years they will suspect him of being LTTE. He said that he makes this claim because of what has happened to others who have returned after being away for a few years.
Ratio Decidendi
Legal Principle Established
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