SZSNR v Minister for Immigration

[2013] FCCA 1283

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSNR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1283

Catchwords:

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to take into account relevant information or took into account irrelevant information – whether Tribunal otherwise fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), s.65

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZSNR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 128 of 2013

Judgment of: Judge Raphael

Hearing date: 28 August 2013

Date of Last Submission: 28 August 2013

Delivered at: Sydney

Delivered on: 28 August 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Minter Ellison

Counsel for the Respondents: Mr J D Smith

ORDERS

1. Application dismissed.

2. Applicant to pay the Respondents costs assessed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 128 of 2013

SZSNR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a young Tamil male and a citizen of Sri Lanka. He was an unauthorised boat arrival in Australia on 17 February 2012. On 28 May 2012 he applied to the Department of Immigration for a protection (class XA) visa under s.65 of the Migration Act 1958 (Cth)[1].  On 31 August 2012 a delegate of the Minister refused to grant the protection visa.  The applicant applied for a review of that decision by the Refugee Review Tribunal.  He attended a hearing of the Tribunal, together with his migration agent.  On 20 December 2012 the Tribunal determined to affirm the decision not to grant him the protection visa.

   [1] The ‘Act’.

2. The factual background supporting his claim to be a person to whom Australia owed protection obligations was that on 10 September 2011, whilst he was working about one hour’s drive from his home near Batticaloa, he returned to his workplace because he had left his wallet and his mobile phone there.  When he approached the work site, he heard a woman screaming and he went to investigate.  He told that he saw the woman being strangled by a man dressed in army trousers, with a black sweater, black T-shirt and boots and with camouflage greasing all over his face.  The applicant told that there was another man there who, when he saw the applicant, began to chase him.  The applicant told that on the next day, he and his father went to the local police station and described the incident, but the police responded that the perpetrators appeared to be mad and did not want to take the matter any further.  Three days later, three soldiers came to the applicant’s house, banged on the door and shouted in Sinhalese.  When his parents did not open the door, some neighbours came out and the three men got into a white van and drove away.  The family determined that the applicant should leave Sri Lanka as soon as possible.  It was hoped that he would go to Kuwait, where his brother was working, but was unable to obtain a visa.  So he took the option of boarding a boat for Australia.  The applicant also told that on 19 September 2011, while he was walking near his house, people in a white van attempted to abduct him.  The applicant also claimed that he was entitled to Australia’s protection as a young Tamil male from the northern part of the country, and also as a returned asylum seeker.

3. The Tribunal questioned the applicant on his story and upon his general claims.  It asked whether the applicant could identify the men who did the killing and was disappointed that the applicant was unable to give more than the barest description of them.  It asked the applicant why he thought that nothing had happened to him in the four months after September, before he boarded the vessel for Australia.  The applicant responded that he was at his neighbour’s and relative’s house.  The applicant had produced as corroborative evidence a death certificate purportedly of the young girl who he saw being strangled.  The Tribunal asked questions about how his father was able to obtain such a document:

   “The Tribunal raised the fact that the applicant was granted a genuine passport suggests that he was of no adverse [interest] to the Sri Lankan authorities prior to him seeing this woman being choked, that is, that he was of no adverse interest based on him being a young Tamil male from Batticaloa.  The applicant agreed with this.  The Tribunal also raised that people considered of interest to the authorities were detained after the Civil War, but the applicant had not been detained, and this suggested he was of no interest.  The applicant said he was living in a LTTE controlled area, and when they rounded people up he was taken and questioned and then let go, but people under suspicion were taken away.” [40 CB215]

4. As a result of its questioning of the applicant, the Tribunal came to the conclusion that he lacked credibility:

   “This finding is based on the applicant’s oral evidence, which was repetitive and likely constrained to the information that he had previously provided in his written statement and interviews, seemingly regardless of which questions he was asked.  This gave the impression that the applicant was reiterating a learned script, rather than answering questions about an event or events that he had experienced” [67 CB222]

5. The Tribunal’s reasons then gave examples of the repetitive use of evidence and proceeded to note that it had raised information with the applicant, pursuant to the provisions of s.424AA of the Act.  One of those series of questions concerned the death certificate about which the Tribunal said:

   “This circular response, and lack of further evidence from the applicant as to how his father had obtained the Death Certificate, especially in the light of his earlier evidence that there was no information regarding someone who had been murdered, led the Tribunal to find the applicant was unable to provide further evidence because he had fabricated his evidence that his father had pursued the murdered woman’s family for the Death Certificate.  The Tribunal does not accept that the Death Certificate is genuine” [69 CB223]

6. The Tribunal concluded, following its rehearsal of its reaction to the responses of the applicant that:

   “This combination of factors has led the Tribunal to find that the applicant was not providing evidence regarding events that he had actually participated in or witnessed.  He was instead providing the evidence from a script that he had learnt based on fabricated claims that he had used to try and strengthen his claim for refugee status” [75 CB224]

7. The Tribunal then turned to the general claims and, utilising the independent country information that it had put to the applicant at hearing, came to the conclusion that he would not suffer persecution for having left the country illegally or for being a young Tamil male from the north of the country.  It also considered a claim made by the applicant that the Sri Lankan authorities had made an announcement that all persons on the boat upon which he arrived had fought with the LTTE.  The Tribunal found no independent evidence of this and therefore relied on country of origin information that all returnees were treated in the same way.  It did not consider that the Sri Lankan authorities would be aware that the applicant was on this particular boat, in any event.

8. The Tribunal also considered the applicant’s claims as against the criteria for complementary protection.  At [88-90 CB227-227] it concluded that the applicant was unlikely to suffer significant harm upon a return to Sri Lanka. 

9. On 23 January 2013 the applicant filed an application with this court seeking review of the Tribunal’s decision.  There was one ground of application.  That was:

   “The RRT decision is infected by jurisdictional error. 

   Particulars

   The RRT took into account irrelevant considerations and failed to take into account relevant considerations.”

10. The ground has not been particularised and although the applicant was provided and with an opportunity to file an amended application he did not do so.  It is not appropriate for the court to hazard a guess as to what the applicant may have meant by the particulars he provided, or what the irrelevant considerations were, or what the relevant ones were.  However, the court has looked through the Tribunal’s decision record, and it would appear the Tribunal has taken into account all the matters that the applicant raised with it, with the delegate and in his original application for a visa.

11. The Tribunal has come to a conclusion unfavourable to the applicant based upon its view as to his credibility, which is a matter for the Tribunal par excellence and cannot be interfered with by this court if it can be said that it was arrived at on the available evidence. [2]  It seems to the court that any reading of the Tribunal’s decision record would find that there was available evidence for the conclusion that the Tribunal reached.

    [2] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.

12. In the same way, the Tribunal came to its conclusions on the general claims based upon the available evidence from the independent country information.  It is the Tribunal’s duty to decide which information to receive and accept, and provided that the decision is based upon that information, there will be no ground of jurisdictional error made out. 

13. In his helpful written submissions Mr Smith pointed out the possibility that the Tribunal may not have given consideration to certain references found at CB94-97.  But on reflection and on further consideration of the decision record it appears to the court to be clear from what is stated at [53 CB217] that these statements were taken into account by the Tribunal:

    “In relation to the priest’s letter (on the applicant’s file), the agent said it is not unusual for a Hindu person to have a letter from a Catholic priest.  The Tribunal acknowledges this, but said at the moment it gave very little weight to the information provided in the referees reports because they had been written after information was provided to them by the applicant and/or his family, and therefore they did not independently verify the issues they were referring to.” [53 CB217]

14. The applicant appeared before me today.  He told me that everything that he had described to the Tribunal was true.  He told me there were problems in his country and that if he went back he would be allowed to be at large for a time and would then be abducted.  He told me that it would be better to send his corpse from here, because at least his family would be able to receive it.  He told me that Tamil people cannot live in Sri Lanka.  I explained to the applicant that the court was unable to hear evidence as to the merits of the claim and that this was what protesting the truth of his statements amounted to.

15. In these circumstances I have been unable to find any grounds upon which I could conclude that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.  The application must be dismissed and the applicant must pay the respondent’s costs, which I assess in the sum of $6,646.00. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  5 September 2013