SZRKL v Minister for Immigration
[2013] FMCA 64
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRKL v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 64 |
| MIGRATION – Review of decision of RRT – whether Tribunal gave proper genuine and realistic consideration to certain independent country information provided by applicant – whether Tribunal breached s.423 Migration Act 1958 by failing to consider the information. |
| Migration Act 1958 (Cth), s.430(1)(d) |
| Minister for Immigration & Anor v SZLSP [2010] FCAFC 108 Tickner and Others v Chapman and Others (1995) 57 FCR 451 WAEE v Minister for Immigration& Anor (2003) FCAFC 184 Minister for Immigration & Anor v SZGUR (2011) 241 CLR 594 NAHI v Minister for Immigration& Anor [2004] FCAFC 10 |
| Applicant: | SZRKL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 878 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 February 2013 |
| Date of Last Submission: | 5 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Rasa Selliah and Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 878 of 2012
| SZRKL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who arrived in Australia on 30 December 2010. On 31 January 2011 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 25 July 2011 a delegate of the Minister declined to grant a protection visa. On 28 July 2011 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. The applicant was represented by a migration agent. The applicant attended a hearing before the Tribunal and both before and after the hearing his representative made written submissions to the Tribunal. On 20 March 2012 the Tribunal determined to affirm the decision not to grant him a visa.
The claims made by the applicant which supported his contention that he had a well founded fear of persecution for a convention reason were both generic and specific. The applicant is a young Tamil male who lived in the north of Sri Lanka from his birth in 1993 to January 2010 when he claims he went into hiding at an unknown place belonging to his uncle. The specific claims of fear arose out of his parents allegedly renting a room in their house to a person who was connected to the LTTE. This person[1] roomed with the applicant’s parents between 2004 and 2007. He was arrested in 2009 because of his active involvement with the LTTE. The applicant claimed that as a result, the EPDP stopped him on his way to school, questioned and threatened him. He claimed that at the beginning of 2010 he was stopped on his way to school and told that he would be taken into custody later in the day. He ran away and was then hidden in his uncle’s house. He claimed that if he returned to Sri Lanka he would be shot by the EPDP because of his suspected LTTE involvement due to the family’s association with “P”.
[1] “P”
At [29] [CB 195] the Tribunal sets out its understanding of the claims being made on behalf of the applicant by his advisors:
“[29]On 6 January 2012 the Tribunal received a submission from the Applicant’s current advisor (engaged following the Applicant’s transfer from Perth to Sydney). The advisor reiterates the Applicant’s account of his experiences in Sri Lanka, confirming that the LTTE-associated group to which Piraba was said to belong was the Pongi Elum Makkal Paddai. He quotes extensively from the delegate’s decision record and takes issues with the delegate’s findings. He canvasses legal issues and quotes country information, including reports of the treatment of returnees including failed asylum seekers, to submit there is a real chance the Applicant would suffer persecution on the Convention grounds of:
· His Tamil race.
· His membership of a particular social group consisting of young Jaffna Tamil boys, failed young Jaffna asylum seekers and/or young Tamil boys who left the country illegally.
· His imputed political opinion (suspected affiliation with the LTTE)”
The Tribunal rejected the applicant’s specific claims arising out of the alleged association with “P” based upon its views as to the applicant’s credibility. This rejection is not the subject of the application for review made in this court. It is made in respect of the applicant’s claims that he was a member of a particular social group comprising young Jaffna Tamil boys or failed young Jaffna asylum seekers. The Tribunal accepted for the purposes of the application before it that these two classes could constitute a particular social group although it was not convinced of that fact. A third iteration of a particular social group was rejected by the Tribunal on the basis that it did not accept the premise that the applicant had left the country illegally. That again was not the subject of the application.
The Tribunal concluded that the applicant did not have a well founded fear as a result of being a member of the two particular social groups it accepted. At [91] [CB 211] it said:
“[91]Having considered the independent country information before the Tribunal I accept that individuals in Sri Lanka, in particular Tamil males, who are suspected of involvement in some way with the LTTE may be at risk of harm from the authorities or paramilitary organizations working with the government. The information does not demonstrate, however, and I do not accept, that those who are simply members of the particular social group consisting of ‘young Jaffna Tamil boys’ and who are not otherwise suspected of having any LTTE connection or holding views adverse to the authorities are at risk of harm from the army, the EPDP or anyone else. On this basis, given my lack of satisfaction as to the credibility of the Applicant’s claim to have been suspected of LTTE involvement, I am not satisfied there is a real chance that he would suffer serious harm amounting to persecution because of his membership of such a group if he returned to Ari Lanka now or in the reasonably foreseeable future.”
In regard to the applicant’s claim arising out of his treatment as an unsuccessful asylum seeker the Tribunal said:
“[92]I have considered the independent country information regarding the treatment of unsuccessful asylum applicants returned to Sri Lanka. The material reflects somewhat divergent views about the likelihood that such persons experience serious harm, beyond simple questioning over a possibly extended period. I note, however, that in the case of two large groups deported from the United Kingdom in recent times the returnees were released after relatively short periods of detention. Taking this material together I am not satisfied that persons such as the Applicant, who may be known by the Sri Lankan authorities to have been unsuccessful in applications for refugee status overseas, suffer serious harm amounting to persecution, whether or not they are ethnically Tamils from Jaffna, for this reason. I accept that the Applicant might well be inconvenienced by being taken aside for questioning on arrival at the airport, and that this process could continue over a period of some hours or, possibly, overnight. Given that I reject his claim to have come to the adverse attention of the authorities in the past, however, I am not satisfied there is a real chance that he would be subjected to any further treatment than this or that the questioning could reasonably be seen as constituting serious harm in his case. I am thus satisfied that he would face persecution in Sri Lanka because of his membership of the particular social group consisting of ‘failed young Jaffna asylum seekers’.
On 5 February 2013 the applicant filed a Further Amended Application seeking review of the Tribunal’s decision. The grounds of the Further Amended Application were:
“1.The Tribunal failed to address the applicant’s claims of persecution for reason of his race, and for reason of his membership of a particular social group consisting of “young Jaffna Tamil boys”, according to law.
Particulars
(a)Failure to give proper, genuine and realistic consideration to evidence and information in the delegate’s decision and in written submissions made by the applicant’s solicitors, to the effect that Tamils, and especially young Tamils, who may not have been involved with the LTTE, were being persecuted.
(b)The Tribunal breached s.423 of the Migration Act by failing to consider country information given to it in submissions made on 4 January 2012.”
In his submissions to the court, Mr Karp, on behalf of the applicant, dealt first with what he claimed was the failing of the Tribunal to comply with s.430(1)(d) of the Migration Act 1958, (Cth) which states:
“(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(d) refers to the evidence or any other material on which the findings of fact were based.”
He accepts that there is no jurisdictional error in a breach of s.430; Minister for Immigration & Anor v SZLSP [2010] FCAFC 108 at
[46-48] per Kenny J, per Rares J at [85-86] but submits correctly that a breach of s.430 might reveal that the Tribunal has not carried out its jurisdictional tasks completely. In the instant case he argues that this can be found from the failure of the Tribunal in [91] to indicate what the information was that did not demonstrate that those who are simply members of a particular social group consisting of young Jaffna Tamil boys and who were not otherwise suspected of having any LTTE connection were at risk of harm. Mr Karp points to the information supplied by the applicant and found commencing at [CB 140] which he claims constitutes overwhelming evidence that young Tamils are at risk of harm. He argues that the discontinuity between that evidence and the Tribunal’s statement would indicate that it did not consider the applicant’s representations in the way required by the Full Bench; Black CJ, Burchett and Kiefel JJ in Tickner and Others v Chapman and Others (1995) 57 FCR 451 at [462].
It is important that independent country information is looked at in the context of its production. That produced by the applicant and found between [CB 140-149] commences with the following:
“The undermentioned country information indicates that the person like the applicant’s profile are harassed and persecuted by the Sri Lankan authorities.”
It is to be remembered that the profile that the applicant was putting forward was of a young Sri Lankan male who was being imputed with a political opinion in favour of the LTTE because of the actions of his parents in renting a room to “P”. It is for this reason, probably, that many of the extracts make reference to connection with the LTTE. This is reinforced by the submission made on the applicant’s behalf at [CB 149]:
“[149]We humbly submit that the country information/reports lend credence to the applicant’s claim that the situation in Sri Lanka is still grave in his situation. We state that young Tamils from northern and eastern provinces are frequent victims of harassment and persecution on whom there is the slightest suspicion of the LTTE links.”
The Tribunal, having dismissed the claim that the applicant had LTTE links or was imputed to have them, would be entitled to give less weight to this information than its volume might appear to require. The Tribunal might be justified in coming to the view that the information did not really assist it in coming to a conclusion about a claim based solely on the applicant’s youth, ethnicity and place of residence.
It must also be said that the reading of the first few lines of [91] would guide anyone with a familiarity in these matters straight back to the UNHCR Eligibility Guidelines for Assessing International Protection Needs of Asylum Seekers from Sri Lanka released on 5 July 2010. These are referred to in the decision record of the delegate at [CB 103]:
“[103]Given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country.”
That piece of information was clearly available to the Tribunal. It was contained in the delegate’s decision at [CB 103]. The fact that it was not specifically referred to cannot be construed as a jurisdictional error as the Full Court said in WAEE v Minister for Immigration& Anor (2003) FCAFC 184 per French, Sackville and Hely JJ at [46]:
“[46]It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.”
The applicant uses this apparent failure to make reference to the information upon which the Tribunal relied to suggest that the representations made by the applicant in his submissions were not considered. But it seems to me that the summation in the commencing sentence of [91] indicating that the Tribunal has considered the independent country information makes it clear that is a finding that cannot be made. The letter is also referred to at [29] [CB 195] extracted at [3] in these Reasons. I note also in that submission the applicant’s advisors make reference to the UNHCR Report although they do not quote the remarks that I have extracted which were unhelpful to their client. The difficulty which an applicant faces in making a case that a matter was overlooked is evidenced by the decision of the High Court in Minister for Immigration & Anor v SZGUR (2011) 241 CLR 594 at [33] per French CJ and Kiefel J and [73] per Gummow J where his Honour said:
“[73]The Tribunal had clearly read the letter from the migration agent. The Tribunal summarised most of its contents in its written statement. That weighs against the drawing of an inference that the Tribunal did not read or did not turn its mind to the paragraph in which the request was made. The absence of reference in the Tribunal’s written statement to the making of the request by the migration agent or to the Tribunal’s decision as to the request was the only evidential basis upon which the inference could be made. In light of the other evidence, that was not a sufficient basis to found an inference that the Tribunal failed to consider whether to exercise its power under s 427(1)(d) to require the Secretary to arrange for a medical examination.”
As I cannot be satisfied that the Tribunal failed to consider the independent country information given to it in the submission of 4 January 2012 I must consider whether it failed to give proper genuine and realistic consideration to that evidence. At this stage, given my view that the evidence was considered in its context and weighed against the competing evidence of the UNHCR Report referred to with particularity by the delegate and with generality by the applicant’s advisors, I cannot accept that such consideration was not proper, genuine or realistic. What the applicant is seeking to do is to use this formula to disguise what is essentially a request for merits review and such review is impermissible in this court. The UNHCR Report provides a clear basis for the finding made by the Tribunal. It is up to the Tribunal to decide whether it prefers the UNHCR Report to the other reports quoted by the applicant and the weight to be given to those reports. As was said by the Full Court Gray, Tamberlin and Lander JJ in NAHI v Minister for Immigration& Anor [2004] FCAFC 10:
“[10]The question of the accuracy of country information is one for the Tribunal and not for the court. If the court were to make its own assessment of the truth of country information it would be engaged in merits view. The court does not have the power to do that.”
It follows from what has been said above that I am unable to accept the applicant’s contentions and provide him with review of the Tribunal’s decision. The application must be dismissed and the applicant shall pay the first respondent’s costs assessed in the sum of $6,471.00
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 11 February 2013
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