SZSHO v Minister for Immigration

[2013] FCCA 1457

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSHO v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1457

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether applicant made claim that his relatives constituted a particular social group to which he was a member – whether Tribunal failed to consider an element of the applicant’s claim.

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
SZSIB v Minister for Immigration & Anor [2013] FCCA 1413

Applicant: SZSHO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2782 of 2012

Judgment of: Judge Raphael

Hearing date: 18 September 2013

Date of Last Submission: 18 September 2013

Delivered at: Sydney

Delivered on: 18 September 2013

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,700.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2782 of 2012

SZSHO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this case a young Tamil male from the north of Sri Lanka made claims to be a person to whom Australia owed protection obligations for some specific incidents that he claimed happened to him and members of his family and for some general grounds based upon his ethnicity, place of birth, and residence.  When his case came to be determined by the Refugee Review Tribunal, it concluded that it could not accept as credible the specific claims and proceeded to give consideration to those more general ones, concluding that it could not be satisfied that these indicated that the applicant had a well-founded fear of persecution for a Convention reason.  It came to a similar conclusion in the case of complementary protection. 

2. On 26 August 2013 the applicant filed in this court an amended application seeking review of the Tribunal’s decision.  There were two grounds, but I have been advised by Mr Kumar, who appears on behalf of the applicant, that only ground one is now relied upon.  This ground is in the following form:

   “While the Tribunal has misdirected its inquiries as to the social group (CB 261-262) and / or considering an element of the claim.

   Particulars
   
   Whilst the Tribunal considered certain attributes of social groups, the Tribunal failed to consider the applicant’s social group in which included the applicant’s relatives (claimed CB261 at [134]) and claim that his relatives were killed in 2009 even his father is not believed to have been harmed); whether he was at risk of harm because of being member of this social group.” [as in original]

3. When Mr Kumar appeared before me today he clarified that ground by alleging that in the applicant’s claims to the Tribunal (at [ii] CB194) a particular social group had been articulated by the applicant’s advisors which was not considered by the Tribunal.  That paragraph of the submission states

   “In considering the Applicant’s risk of persecution if returned to Sri Lanka it is also important to take into account that authorities in Sri Lanka, the paramilitary groups and individual members of the Police Force, Army and CID are engaged in the persecution and human rights abuses of individuals, such as the Applicant, not on the basis of the Applicant’s own political views, activities or personal profile but on the authorities (and the paramilitary groups) own views/policies of ‘screening’ individuals and their own views regarding an individual’s ethnicity, place of birth/residence, age, suspected links with the LTTE and imputed political opinion. Thus authorities (and paramilitary groups) can accuse or suspect an individual of associating with, being a member of, associating with or supporting the LTTE despite the individual’s denial.” [as in original]

4. Mr Kumar reminded the court that the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24-26] per Gummow and Callinan JJ provided a template for consideration of cases involving membership of a particular social group.

   “[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the Tribunal. This followed from the language of s 476(2)(a) of the Act (as it was when the applications were made¹) which provided as follows:

   "(2) The following are not grounds upon which an application may be made under subsection  (1):

   (a) that a breach of the rules of natural justice occurred in connection with the making of the decision.”

   [25] The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution. It is to that question that we will now turn.

   [26] At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention.² That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.”

5. This authority has been considered and followed in a number of cases where particular emphasis has been placed on a necessity to make the case clearly.  I dealt with this aspect of the matter recently in SZSIB v Minister for Immigration & Anor [2013] FCCA 1413[1] where at [19] I extracted the authorities:

   [1] SZSIB.

   “The Federal Court has recently considered a claim of this nature and discussed the manner in which it should be treated; SZSGA v Minister for Immigration & Anor [2013] FCA 774 per Robertson J. His Honour considered such authorities as Htun v Minister for Immigration & Anor [2001] 194 ALR 244, Dranichnikov v Minister for Immigration & Anor [2003] 197 ALR 389 at [22 – 24, 27] and NABE v Minister for Immigration & Anor (No 2) [2004] FCR 1 at [58 – 61] and M61/2010E v The Commonwealth [2010] 243 CLR 319 at [90] before saying at [48 – 52]:

   “[48]    In M61/2010E at [90] the Court said, with reference to Dranichnikov at [24] and [95] that failing to address one of the claimed bases for the plaintiff’s fear of persecution was a denial of procedural fairness.

   [49]    NABE discussed, at [58], the proposition that the Tribunal was not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raised a case not articulated. The Court said that a claim not expressly advanced would attract the review obligation of the Tribunal when it was apparent on the face of the material before the Tribunal. Such claim will not depend for its exposure on constructive or creative activity by the Tribunal. At [59] the Court discounted as a general rule that the Tribunal could disregard a claim which arose clearly from the materials before it. The Court approved, at [60], the following statement by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 at [18]:

   The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

   The Court said that this did not mean that the Tribunal was only required to deal with claims expressly articulated by the applicant. It was not obliged to deal with claims which were not articulated and which did not clearly arise from the materials before it.

   [50]    At [62], the Court cited with approval the statement by Gleeson CJ in S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [1]:

   “Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”

   The Court said at [63] that every case must be considered according to its own circumstances.

   [51]    Applying these principles, the Court in NABE said that although the claim might have been seeing as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal failed to consider a claim which is not expressly advanced is not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.

   [52]    As I have said, in my opinion, the current claim was not apparent on the face of the material before the Tribunal or squarely or sufficiently raised by the material. The claim as now put is taken out of its original context both in the submission of the appellant’s representative and the relevant paragraph, [190], of the Tribunal’s decision.””

   In my view this is the correct approach to take when considering whether or not the particular social group argued for by an applicant has been appropriately dealt with by the Tribunal. 

6. The extract from the applicant’s advisor’s post-hearing submission should be looked at in context.  The first page of that submission [CB193] has a bold heading as follows:

   “APPLICANT’S CLAIMS

   In summary the Applicant fears persecution for reasons of:

   ·his ethnicity (Tamil)

   ·his political opinion (opposition to the Sri Lankan government and the treatment of Tamils by the Sri Lankan government) and imputed political opinion

   ·his membership of a particular social group(s): ‘young Tamil men originating from the north or east of Sri Lanka’, ‘people suspected or accused of being members of, associating with or supporting the LTTE’, ‘Tamil failed asylum seekers’.”

7. In part of the submission found at CB194 there is contained a paragraph that states as follows:

   “We submit that in assessing the risk of convention related persecution or significant harm if the applicant is returned to Sri Lanka it is important to consider that:

   i) There is independent country information that supports the Applicant’s claims that:

   - the Government and authorities in Sri Lanka have in the past persecuted Tamils and are still engaged in the persecution of Tamils on the basis of their ethnicity and/or political opinion/imputed political opinion and links/association with the LTTE

   - members of the paramilitary groups and individual members of the Police Army and the CID were in the past and continue in the present to engage in the persecution and human rights abuses of Tamils on the basis of their ethnicity and/or political opinion/imputed political opinion and suspected links/association with the LTTE and that armed paramilitary groups, continue to commit extortion, abductions and violent crime with impunity and that there is still government inaction in relation to the illegal activity by paramilitary groups, individual members of the Police, Army and the CID and their treatment/persecution of Tamils, such as the Applicant.

   - The Government and authorities in Sri Lanka do not offer effective protection to Tamils who are accused /suspected of supporting/ being member of/ having associated with the LTTE.

   - the Government and authorities in Sri Lanka do not offer effective protection to Tamils from the risk of persecution and human rights abuses by paramilitary groups, and individual members of the Police, Army and the CID…”

8. The question before the court is whether the extracted portion itself articulates a claim or is merely the supporting submission of the articulated claims in paragraph 1 of the letter, and in either case whether those matters have been considered by the Tribunal, either as supporting evidence or as an individual claim if that is what it was found to have been. 

9. In my view, based upon the authorities that I have referred to in my decision in SZSID, what is found at CB194 is merely a fleshing out of the particular claims made at CB193 paragraph 1.  Those groups identified at CB193 are the groups the Tribunal was required to look at.  The best I could say about the extract at CB194 is that it is a persuasive argument that the applicant’s well-founded fear of persecution might rely more on imputed opinion than on actual political opinion.  I note however that at [134] CB261, the Tribunal does make reference to the matters that are referred to at CB194. 

   “At the hearing I put the information in the UNHCR Guidelines issued in 2010 and still current to the applicant as follows: “Given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under the broader refugee criteria or comp[lementary 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.” I asked if he wanted to comment or respond to this information. He responded that because Batticaloa belonged to Jaffna there were a lot of problems for the Tamil people. He said that in 2009 many people were killed including his relatives. He said that Tamils were still being shot. He said that many were without food. He said he would be killed because he is a Tamil. He said that Sinhalese who returned to Sri Lanka had no problems. He added that whatever Tamils do, the Sinhalese find fault with them.”

10. Commencing at [132] CB261, the Tribunal considers the membership of the particular social groups referred to by the applicant’s advisor at CB193 and concludes, for reasons based upon independent country information with which this court cannot cavil, that those fears were not well-founded.  A proper reading of paragraphs [132 to 149] will reveal that all the issues raised by the applicant as claimed were considered and dealt with.  I include the imputed political opinion, which is dealt with at [141], in the context of the applicant as a Tamil.

11. The applicant argues that this is not enough.  The imputed political opinion should be considered in the context of those matters referred to at CB194, which does not just include his ethnicity but includes his place of birth, residence, age and suspected links with the LTTE.  But again, reading the Tribunal’s reasons properly and without an eye attuned to the perception of error, it is the view of the court that those matters have been considered.  The essential reason for the imputation of the political opinion in respect of people with what is claimed to be the applicant’s characteristics is that they are suspected of being members or associating with or supporting the LTTE.

12. That is in itself dealt with separately at [142] of the Tribunal’s decision:

    “In addition I have considered whether the applicant faces persecution for his membership of the particular social group ‘people suspected of being members of, associating with or supporting the LTTE’, as submitted in the post-hearing situation without elaboration. At the hearing the applicant’s claim arising out of his association with the LTTE was discussed at length. I note that the applicant did not make any further comment on the issue in the post-hearing submission, My reasons for rejecting the claims involving suspected involvement with the LTTE are outlined above at paragraphs 126 to 129. Given the applicant’s overall lack of credibility I have found that he was not suspected or accused of being a supporter of member of the LTTE. On the basis of the evidence before me in this case, I am not satisfied that there is a real chance that the applicant will be persecuted now or in the reasonably foreseeable future for reason of his membership of the particular social group ‘’people suspected or accused of being members of, associating with or supporting the LTTE’, and that his fear of persecution in Sri Lanka is well founded.” [as in original]

13. This, the court thinks, is the answer to the complaint that all the constituents were not specifically articulated by the Tribunal in its decision at [141]. The constituents, as has been said, only became of concern because they were themselves constituents of the imputed political opinion arising out of membership or sympathy with the LTTE.

14. It is for these reasons that the court has concluded that it cannot provide the applicant with the review sought pursuant to the amended application, notwithstanding the considerable assistance it has received both in writing and orally from Mr Kumar.  The application is dismissed. The applicant must pay the respondent’s costs, which I assess in the sum of $5,700.00. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  24 September 2013