SZSKH v Minister for Immigration

[2014] FCCA 135

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSKH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 135

Catchwords:
MIGRATION – Review of decision of Refugee Review Tribunal – whether a claim that the applicant was at risk of harm from criminals, including paramilitaries, arose on the material provided to the Tribunal by the applicant – whether the Tribunal failed address a claim clearly articulated by an applicant in the material before it – whether the Tribunal failed to consider information provided to it – jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 65

NABE v Minister for Immigration & Anor [2004] 144 FCR 1

Applicant: SZSKH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2998 of 2012

Judgment of: Judge Raphael

Hearing date: 26 November 2013

Date of Last Submission: 26 November 2013

Delivered at: Sydney

Delivered on: 4 February 2014

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Rasan Selliah and Associates

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A Writ of Certiorari bringing the decision into this Court to be quashed.

2. A Writ of Mandamus, directing the Second Respondent to re determine the applicant’s application to it according to law.

3. First Respondent to pay the Applicant’s costs assessed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2998 of 2012

SZSKH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 17 February 2012 as an unauthorised boat arrival. On 23 May 2012 he applied for a protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth)[1].  On 1 August 2012 a delegate of the Minister refused to grant a protection visa and on the same day the applicant applied for a review of that decision from the Refugee Review Tribunal.  The applicant was represented by migration agents who appeared with him at a hearing organised by the Tribunal.  On 13 November 2012 the Tribunal affirmed the decision not to grant the applicant a protection visa. 

   [1] “Act”

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose from the fact that he was a young Tamil male from the north of Sri Lanka who had become involved with the LTTE as a child scout and spy.  He claimed that later, in his youth, he had been detained by the Karuna Group and CID as a result of a “tip off” from another former child spy.  He claimed that he was ill treated during his detention and that his family had thereafter been the subject of extortion and threats.  The applicant that he was in such fear of his life that arrangements were made for him to leave the country and work in Qatar.  He did this for approximately three and a half years and returned to Sri Lanka when his visa expired in 2011.  He told that when he returned the Karuna Group was still looking for him.  He went into hiding in another area at a hostel run by his aunt.  He remained there until arrangements could be made for him to leave for Australia by boat.

3. The applicant added to these specific claims some generic claims arising out of his ethnicity and the fact that he had left Sri Lanka illegally and would be the subject of discriminatory treatment leading to either real or significant harm upon his return.

4. The Tribunal questioned the applicant upon his story and put to him what it considered to be inconsistencies between what it was being told and what the applicant had previously stated in his application and in his interview with the delegate.  The Tribunal accepted the applicant’s claims of being taken from his family as a child and trained by the LTTE to work as a sentry and scout.  It accepted that he was in the course of carrying out scouting activities when he fell from a tree and badly injured himself in approximately 2004 when he was around eleven years of age.  At [59] [CB 221] the Tribunal concluded in respect of this claim:

   “[59]The country information indicates that a large number of children were forced to undertake military work for the LTTE and it also indicates that the Sri Lankan government along with other agencies such as the UN have undertaken reintegration activities for these persons and that the last remaining rehabilitation centre was closed in April 2010 and that many have been returned to their families.  In the light of this information and the long passage of time since he undertook it, I find that the applicant does not face a real chance of persecution on account of his past military work for the LTTE, now or in the reasonably foreseeable future.  I also find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka that there is a real risk of the applicant suffering significant harm for these reasons.”

5. The Tribunal then turned to the applicant’s claims arising out of interest from the Karuna Group and the authorities.  It did not accept that the applicant was detained by the Karuna Group and CID in 2007 and accused of having weapons for the LTTE and was therefore later of interest to them.  It did not accept that:

   “[60]The applicant is a member of any particular social group consisting of “persons sought after by Tamil paramilitary groups.” [CB 222]

   The Tribunal did not accept the applicant’s story that he had been “dobbed in” by another former LTTE scout due to inconsistencies in the applicant’s evidence concerning this.  It did not believe that the applicant or his family were made the subject of extortion as a result.

6. Neither did the Tribunal accept that the applicant had been identified by the CID and Karuna Group in a refugee camp and accused of being involved with the LTTE of supplying weapons.  The applicant had told that he had been forced to sign a confession in Sinhalese and that he had been beaten by them:

   “[63]I do not accept that the Karuna Group or CID continued to look for him and that they broke into his parents’ house and took a copy of his false passport.  I do not accept that in March 2012 the Karuna Group or the CID harassed his parents or demanded money from them.” [CB 222]

7. The Tribunal went on to deal with the merit claims arising out of the applicant’s ethnicity and the fact that he came from the north.  It took into consideration the fact that the applicant had visible scarring:

   “[66]In the light of the improved situation for Tamils generally since the ending of the war and the lack of interest in him in the past, I do not accept that applicant is of any current interest to the authorities or paramilitary groups such as the Karuna Group that support the government.  Whilst I accept that paramilitary groups such as the Karuna Group are still involved in human rights abuses as demonstrated by the above country information this needs to be read in combination with the overall country information set out above that indicates an overall improvement in the human rights situation for Tamils from the North evidenced in particular by the statement from the UNHCR that there was no longer a presumption of eligibility for Tamils originating from the North.  I therefore do not accept that, now or in the reasonably foreseeable future he faces a real chance of persecution on account of his Tamil race, an imputed political opinion as a suspected LTTE supporter or membership of a particular social group (such as a young, single Tamil male from the North) from the government ort any paramilitary group including the Karuna Group.  Nor do I accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka that there is a real risk of the applicant suffering significant harm for these same reasons.”  [CB 223 – 224]

8. Finally, the Tribunal considered the applicant’s position as a failed asylum seeker:

   “[69]The applicant does possess some of the characteristics (such as having a previous record of illegal departure and visible scarring) which are referred to in the 2009 DFAT report as having anecdotally suggested risk.  Whilst DFAT did refer these matters as possible characteristics, I have taken into account that it was stated to be anecdotal evidence and the weight of information suggests otherwise.  Further whilst the applicant was forced to work for the LTTE as a young child, he was not an actual LTTE member and I do not accept that he has been suspected of being one.  I therefore find, based on the overall weight and authority of the country information and the applicant’s individual circumstances that whilst he may be subject to short term questioning upon his return I do not accept that this constitute serious harm or significant harm.  He does not face a real chance of serious harm, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker whether this is categorised in terms of the Convention grounds of any actual or imputed political opinion or membership of a particular social group (failed asylum seeks or Tamil failed asylum seekers).  Nor do I accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Ari Lanka that there is a real risk of the applicant suffering significant harm for these reasons.”  [CB 224 – 225]

9. The applicant has sought review of the Tribunal’s decision.  He was represented by Counsel.  On 3 December 2013, pursuant to leave of the Court, a Further Amended Grounds of Application was filed.  There are now three grounds:

   “1.The Tribunal failed to lawfully address a claim relevant to both s.36(2)(a) and s.36(2)(aa) of the Migration Act, that arose on the evidence and material before it.

   Particulars

   (a)That there was a continuing danger to the applicant resulting from criminal activity, including but not limited to abduction and extortion at the hands of the Karuna Group, and other paramilitaries.

   2.The Tribunal failed to consider information given to it is a submission given to it which it was required to do pursuant to s.423 of the Migration Act.

   Particulars

   (a)Information sources from a UK Home office Border Agency Report (at CB 136) to the affect that factors including race, scarring, illegal departure from Sri Lanka and having made an asylum claim abroad may increase the risk of a Tamil being seriously harmed.

   3.The Tribunal erred in failing to consider substantial and cogent information corroborating what was said to be “anecdotal” information from DFAT.

   Particulars

   (a)      The applicant repeats Particular (a) of Ground 2 above.”

10. The applicant explains the task before the Court in relation to Ground 1 in the following way:

    “The further amended Ground 1 raises the following questions:

    (a)Whether an issue was raised in the information and evidence before the Tribunal as to, were the applicant to return to Sri Lanka, he may fall victim to criminal activities, including abduction and extortion, at the hands of Tamil paramilitaries and others, and,

    (b)Whether, if such an issue was raised, the Tribunal addressed it?”

11. The applicant provides particulars of the evidence in support of the contention that the issue was raised by reference to the following excerpts from information contained in the Court Book.  Much of it is information provided to the Tribunal by the applicant’s migration advisors:

    “Evidence in support

    2.   The evidence as to (a) above was;

    (a)At CB 135 “Excerpt 2” – reference to reports of abductions for extortion and ransom having increased during the year…

    (b)At CB 137 “Excerpt 4” – reference to the government and its agents continuing to be responsible for arbitrary and unlawful killings …, and the reference, at CB 137-138 to the 2011 Amnesty International report referring to enforced abductions for ransom carried out by the security forces.

    (c)CB 151.10 – reference to armed Tamil groups continuing to operate and commit abuses, including abductions for ransom, enforced disappearances and killings.

    (d)CB 152 – from the U.S. State Dept Report of 2010 (see CB 151.10), under the heading, “a. Arbitrary or Unlawful Deprivation of Life”, including references to the paramilitaries taking on increasingly criminal characteristics.

    (e)CB 153, the whole page, and the references at CB 154.8 to CB 155 to the danger to civilians at the hands of paramilitary and criminal groups, including to those civilians who have been abroad and are perceived to have money.

    (f)SCB 4 – extract from a DFAT cable of 2010.

    (g)SCB 5 – under the heading, “Violations by government – allied armed groups” and the extract from the 2011 Expert’s Report.

    (h)Most significantly, the submission at SCB 8 that “Tamil men such as our client could be victims of serious criminal activities directed at Tamils and perpetrated with impunity by paramilitary groups”, and the extracts from RRT decision [2011] RRTA 284 thereunder.

    3.I submit that the issue of whether the applicant may be the victim of criminal conduct at the hands of the paramilitaries and others were clearly raised.  The next question is was it addressed?”

12. In regard to this evidence the Court notes that the evidence cited in (a) also includes reference to killings and assaults of civilians organised by groups that had a military function during the war but which “now took on increasingly criminal characteristics as they sought to solidify their territory and revenue sources in the post war environment.”

13. In regard to (b) there was also reference to disappearances.  The report in (d) appears very similar to the report in (a).

14. There is a large measure of agreement between the parties that these matters were raised at [5] of the First Respondent’s further written submissions the Minister states:

    “[5]The Minister does not dispute that a claim that the applicant was at risk of harm in the form of extortion etc at the hand of the Karuna Group and other paramilitary groups arose on the materials before the Tribunal, notwithstanding that such claims were buried within a mass of country of information (see the relevant references set out in paragraph [2] of the applicant’s additional submissions) that was provided to the Tribunal by the applicant’s representative and were not adverted to by the applicant in the evidence he gave to the Tribunal.  The Minister also does not dispute the fact that the Tribunal was aware of the existence of country information that suggested that the Karuna Group was involved in targeting individuals for extortion or ransom.  That the Tribunal was aware of such confirmation is apparent from the following comments of the Tribunal (CB 216 [50]):

    “According to DIAC, paramilitaries such as the Karuna group are still active in former LTTE areas such as the north and east of Sri Lanka.  Paramilitary groups have been known to harm Tamils and anyone else perceived to be involved with, or supporting, the LTTE, including targeting individuals for extortion or ransom.  However, such activities may have reduced since the end of the warm, as some groups have now disarmed.  It is argued that the majority of the continuing paramilitary activity is likely to be targeted at political rivals and those critical of the government, including journalists and civil society activists …””

15. It would appear that the issue between the parties is whether or not these claims were addressed by the Tribunal.  The applicant maintains that the Tribunal dealt with these matters under the heading “Interest from Karuna Group and Authorities” at [CB 222].  The Tribunal did not accept that the applicant had been detained by the Karuna Group in 2007.  It gave limited weight to an allegedly corroborative letter from the Rt. Rev. Dr J Kingsley Swampillai [CB 81] which states:

    “Mr Applicant was threatened and intimidated by an unidentified armed group presumed to be from the rival group due to suspicion of his link with the LTTE he had to live a secluded life in the government controlled area.”

16. The Tribunal did not accept that the applicant had been identified as having been involved with the LTTE and undergone weapons training or that his parents were harassed by the Karuna Group or the CID.  The applicant submits that those findings related solely to the applicant’s particular claims rather than the more generic one of risk from criminal groups.

17. The Tribunal dealt with other generic matters under the heading “Tamils”.  It accepted certain information that the persons suspected of having links with the LTTE could suffer substantial mistreatment, that young Tamil men may be disproportionately affected by security measures but because there was not a real chance that the applicant would be imputed with a political opinion favourable to the LTTE it did not accept that he would suffer in this way.  It considered the effect of the applicant’s scarring upon its views but stated:

    “[65]I have not [come] across any information that suggests that being scarred in itself would lead to either a real chance of persecution or a real risk of significant harm for Tamils including those who are young, single and male from the north or east.” [CB 223]

18. At [8] of his additional submissions the applicant notes:

    “[8]      At CB 223-4 [66] the Tribunal;

    (a)Did not accept that the applicant was of any “current” interest to the authorities or paramilitary groups (emphasis added).  This, in my submission refers to interest that may have arisen from past events, not that which may arise in the future.

    (b)Accepted that groups such as Karuna’s were still involved in human rights abuses but found that the country information which it cited needed to be read in conjunction with the overall country information to the effect that there was no longer a presumption of eligibility for international protection for Tamils from the north.

    (c)Found that the applicant did not face a real chance of persecution for reason of his race, an imputed political opinion as a suspected LTTE supporter or as a member of a particular social group. Nor did the Tribunal accept that the applicant came within s.36(2)(aa) Migration Act.

    [9]As to para 8(b) above, it should be mentioned that the only country information cited relating to the Karuna Group was at CB 216 [49]-[50].  That was to the effect that its members “have been known to harm Tamils and anyone else perceived to be involved with or supporting the LTTE, including targeting individuals for extortion and ransom”.  That in my submission is clearly a reference to the danger facing those suspected of supporting the LTTE.  Also, at the end of [50] there is a reference to an increase in criminal activities carried out by paramilitaries.”

19. The applicant submits that a clear claim that he was in danger of harm from criminals including the paramilitaries was raised but was not discussed in the Tribunal’s decision. He submits that the danger of being targeted by criminals could come within the convention ground of race but was probably more appropriately placed under the complementary protection ground in s.36(2)(aa). He submits that the claim was not addressed under either heading.

20. The Minister argues that at [66] the Tribunal made two factual findings.  These are dealt with in [9], [10], [12] and [13] of his submissions:

    “[9]First, the Tribunal stated that in “light of the improved situation for Tamils generally since the ending of the war and the lack of interest in him in the past”, the applicant would not be of any current interest to paramilitary groups such as the Karuna Group.  This factual finding formed the basis of the Tribunal’s conclusion (expressed later in the paragraph) that it did not accept that the applicant faces a “real chance” of persecution (being the test enunciated in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR) on account of his Tamil ethnicity etc from any paramilitary groups such as the Karuna Group.

    [10]It is incorrect, therefore, to suggest that the Tribunal did not deal with the claim that the applicant feared from the Karuna Group or other paramilitary groups in the context of considering the applicant’s Convention-related claims (bearing in mind that s 91R(1)(a) provides that Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless … that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution).  The unambiguous wording of paragraph [66] clearly demonstrates to the contrary.

    [12]Secondly, the Tribunal concluded that whilst the “above country information” (which must be taken to be a reference to the country information cited by the Tribunal earlier in the reasons at CB 216 [50] suggests that although the Karuna Group is involved in human rights abuses (the human rights abuses referred to by the Tribunal at CB 216 [50], include targeting individuals for extortion or ransom), there is an overall improvement in the human rights situation for Tamils and that the applicant is not likely to be a risk of harm from the Karuna Group.  (It must be noted that it is not correct to suggest, as the applicant suggests in paragraph [9] of his additional submissions, that the country information cited by the Tribunal at CB 216 [50] only dealt with the issue of whether the Karuna Group would solely target those who are suspect of having supported the LTTE and not Tamils generally).  This factual finding formed the basis of the Tribunal’s conclusion )expressed later in the paragraph) that there “are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka that there is a real risk of the applicant suffering significant harm for these same reasons” (i.e. at the hands of the Karuna Group).

    [13]In concluding that the applicant did not face harm from the Karuna Group or other paramilitaries, the Tribunal has clearly used the language of s 36(2)(aa) (the “complementary protection provision”). As such, it is not correct to suggest that the Tribunal failed to consider, in the context of assessing the applicant’s complementary protection claims, whether the applicant faced harm in the form of extortion etc at the hands of the Karuna Group and other paramilitaries. The applicant’s submission that the Tribunal did not consider the applicant’s claim in the complementary protection context, even though the Tribunal used the language of s 36(2)(aa) when considering and rejecting the claim, cannot stand in light of the Tribunal’s reasoning in paragraph [66].”

1. At [13] of the submissions the Minister deals with the allegation that the matter was not considered under s.36(2)(aa).

2. The Court would be sympathetic to the arguments put by the Minister if the applicant’s particulars had ceased at the words “Karuna Group” but it does not.  It goes on to mention other paramilitaries.  The independent country information appears to the Court to indicate that what is occurring is that some of these paramilitary groups have become criminal gangs in order to shore up their position since the peace.  The nearest the Tribunal gets to a consideration of the paramilitary groups’ criminal activities is found at [66] [CB 224] but this is so closely intertwined with its views about the applicant being of interest because of his past activities that it is difficult to say that the concerns articulated in the extracts referred to earlier have been addressed either under the Convention or under the complementary protection regime.  Whilst the Court is satisfied that the Tribunal did look at all those matters which it did take into consideration under both headings it is of the view that the danger from paramilitaries acting criminally was not taken into account.  This constitutes the jurisdictional error of not addressing an issue clearly articulated by an applicant; NABE v Minister for Immigration & Anor [2004] 144 FCR 1 at [55-63].

3. The Court is satisfied that there is little merit in grounds 2 and 3 of the Application. The Tribunal certainly took into account the issues referred to in ground 2.  The information referred to in particular (a) was very similar to information contained from post set out at [55] [CB 220].  It is difficult to see how the information at [CB 136] is any stronger than the information at [CB 220].  It is for the Tribunal to determine how it treats such evidence.  It accepted the post view that the evidence was anecdotal.  For the Court to interfere in this finding would be to provide the applicant with impermissible merits review.  In the Court’s view grounds 2 and 3 cannot be made out.

4. As the applicant has satisfied the Court that a jurisdictional error did occur it is appropriate that the Court grants the relief sought in paragraphs 1 and 2 of the Further Amended Application and orders that the first respondent pay the applicant’s costs assessed in the sum of $6,646.00.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:         4 February 2014