SZSNR v Minister for Immigration and Border Protection

[2013] FCA 1305

FEDERAL COURT OF AUSTRALIA

SZSNR v Minister for Immigration and Border Protection

[2013] FCA 1305

Citation:	SZSNR v Minister for Immigration and Border Protection [2013] FCA 1305
Appeal from:	SZSNR v Minister for Immigration & Anor [2013] FCCA 1283
Parties:	SZSNR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1915 of 2013
Judge:	NICHOLAS J
Date of judgment:	5 December 2013
Legislation:	Migration Act 1958 (Cth)
Cases cited:	NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Date of hearing:	29 November 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	15
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Counsel for the Respondents:	Mr JD Smith
Solicitor for the Respondents:	DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1915 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSNR
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	5 DECEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The appellant pay the first respondent’s costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1915 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSNR
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	5 DECEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against an order of a Federal Circuit Court Judge (the primary judge) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) for jurisdictional error.  The primary judge concluded that no jurisdictional error was established.

2. The appellant is a Sri Lankan national of Tamil ethnicity.  He was born in Sri Lanka in 1992, and arrived in Australia on 17 February 2012.  The appellant claimed to be a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (the Convention) on a number of grounds.  The first of these related to an incident that the appellant claims to have witnessed in September 2011 (the September 2011 incident).  The other grounds, of a more general character, related to the appellant’s Tamil ethnicity and the fact that he had fled Sri Lanka and sought asylum in Australia (the general claims).

3. The Tribunal summarised (at [20]) the key events relevant to the appellant’s claims regarding the September 2011 incident:

   ·On 10 September 2011, the appellant witnessed a soldier strangling a woman, in an attempt to kill her, while another soldier watched.  The soldiers saw the appellant, and one of them ran after him, but the appellant got away.

   ·The next day, the appellant and his father went to the local police station to report the incident, but the police officer refused to take his statement.

   ·Three days later, at around 10 or 11 in the evening, three soldiers came to the appellant’s family home and banged on his door; his parents refused to open the door and the neighbours came outside.  When the soldiers saw the neighbours they fled in a white van.

   ·On 19 September 2011, while walking near his house, some people in a white van attempted to abduct the appellant.

   ·After the appellant left Sri Lanka the police went to his house to enquire about him and his family told them that he was in Australia.

4. The appellant’s general claims for protection are based on fear of persecution on the grounds of race, actual or imputed political opinion and membership of a particular social group.  These are based on the fact that the appellant is Tamil, a male from Batticaloa (which is located in the east of Sri Lanka), and is from an area formerly controlled by the Liberation Tigers of Tamil Eelam (LTTE).  He claims that as a young Tamil male the Sri Lankan police would suspect him of having links to the LTTE. 

5. The appellant also claims membership of a particular social group because he left Sri Lanka illegally, and says that if he is forced to return he will be detained, accused of supporting the LTTE and seriously mistreated.

   PROCEEDING BEFORE THE TRIBUNAL

6. The delegate of the first respondent (the delegate) refused the appellant’s application for a protection visa, and the Tribunal affirmed the delegate’s decision.  The Tribunal found that the appellant lacked credibility and that his claims in relation to the September 2011 incident were fabricated, a conclusion that was largely based on the appellant’s oral evidence at the Tribunal hearing.  The Tribunal found (at [67]) that the appellant’s evidence was:

   repetitive and largely constrained to the information that he had previously provided in his written statement and interviews, seemingly regardless of the questions he was asked.  This gave the impression that the [appellant] was reiterating a learnt script, rather than answering questions about an event or events that he had experienced.  In noting this the Tribunal recognises the difficulties faced by asylum seekers in providing supporting evidence.  However, it is reasonable to expect that applicants would be able to provide evidence at a basic level regarding personal experiences.

   The Tribunal went on to find (at [71]) that the appellant was only able to provide limited and repetitive information about key features of his evidence.  The Tribunal also drew attention to the following matters which led it to conclude that the appellant lacked credibility and that his claims were fabricated:

   ·The death certificate provided by the appellant for the woman allegedly killed in the September 2011 incident was not genuine.  The appellant had previously said that there were no reports of a woman being killed in the area, yet he later produced a death certificate to the Tribunal.  The Tribunal said that this raised questions about how the appellant or his father would have obtained such a certificate.  The Tribunal found that the appellant’s answers to its questions about how his father had discovered who had been killed were circular and that his evidence about this was fabricated.

   ·The appellant was unable to explain what he hoped to achieve in reporting the incident to the police.  When asked by the Tribunal what he had hoped to achieve the appellant said, in effect, “nothing in particular”.  In the Tribunal’s view this response was inconsistent with what might be expected of a person who had experienced such an event.  The Tribunal was of the view that if the appellant had experienced the events in question he would have reported it to the police in the hope of achieving a certain outcome, such as having the matter investigated.

   ·The appellant was unable to provide an address or location of where he was working at the time, and where he had allegedly seen the murder take place, despite that he claimed to have attempted to report the incident to the police.

   ·The appellant acknowledged that he had remained in Sri Lanka for almost four months after the alleged incident.  The appellant initially said that he was visited twice while in Sri Lanka, the first time being when three men came to his house late in the evening and the second time being when people in a white van attempted to abduct him.  When the Tribunal raised with the appellant that it was a long time to remain in Sri Lanka if he was being pursued by the Sri Lankan army or authorities, the appellant said that he had been visited a further time before he left for Australia.  The Tribunal stated that while this evidence did not contradict his earlier evidence, it did seem to “conveniently fill a gap that had been raised in the [appellant’s] evidence.”

7. In relation to the appellant’s general claims, the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations.  The Tribunal’s decision in this regard was largely based on country information including what was said to be the latest UNHCR Guidelines, “Eligibility guidelines for assessing the international protection needs of asylum seekers from Sri Lanka” dated 5 July 2010 (UNHCR Guidelines).  The UNHCR Guidelines provide that Sri Lankans originating from the north of the country are no longer in need of international protection under the Refugee Convention, or under complementary forms of protection, solely on the basis of risk of indiscriminate harm.  The Tribunal noted (at [83]) that although the appellant was from the east rather than the north of Sri Lanka, there was no reference in the UNHCR Guidelines to Tamils from the east being in need of protection on the basis of their ethnicity.  When the Tribunal suggested to the appellant that there was no requirement for protection for Tamils generally, the appellant agreed, but said that he required protection because he had witnessed the murder.

8. In relation to the appellant’s claims that he fears persecution as a failed asylum seeker who was returning to Sri Lanka, the Tribunal found that the Sri Lankan authorities treat all returnees alike, regardless of ethnicity or other factors.  Referring to the country information obtained by the Tribunal, the Tribunal found that returnees may be detained while security checks are completed, and that although people have been arrested on return, the majority have been released soon after.  The Tribunal found that short-term detention and security checks, along with the possibility of a fine, did not constitute serious harm or persecution under the Refugee Convention.  The Tribunal also found that these features did not constitute significant harm under the complementary protection provision.

   PROCEEDING BEFORE THE PRIMARY JUDGE

9. The appellant relied on one ground of review before the primary judge:

   1.The RRT decision is infected by a jurisdictional error.

   Particulars

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

   In his reasons for judgment, the primary judge noted that the appellant’s ground of review had not been particularised.

10. The primary judge said he had considered the Tribunal’s reasons for decision and it appeared that the Tribunal had taken into account all matters that the appellant had raised with both the Tribunal and the delegate, and in his original application for a protection visa.  The primary judge noted (at [13]) that the first respondent had pointed out the possibility that the Tribunal may not have given consideration to certain referee reports in support of the appellant.  However the primary judge found that these statements were taken into account by the Tribunal at [53] of its reasons.

11. The primary judge found that the appellant could not point to any grounds of jurisdictional error, and that his oral submissions went only to the merits of his claim.  The primary judge also found that the Tribunal’s conclusions concerning the appellant’s credibility, and its rejection of the appellant’s general claims, were open on the evidence before the Tribunal.  The primary judge dismissed the application for review.

    THE APPEAL

12. In this Court, the appellant filed a Notice of Appeal containing two grounds:

    (1)the RRT failed to take into account relevant information and took into account irrelevant information, and

    (2)the RRT fell into jurisdictional error.

    Neither ground of appeal is particularised, and the appellant’s affidavit accompanying the notice of appeal does not take the matter any further.  The appellant was not legally represented before me and did not file any written submissions.  He did make some oral submissions with the assistance of an interpreter but these were solely directed to factual and credibility findings made by the Tribunal, the correctness of which he disputed.  The appellant did not seek to identify any legal error in the primary judge’s reasons.

13. It is clear from the Tribunal’s reasons that it considered all of the matters that the appellant raised with it, and also considered the material put to it by him, including the referee reports referred to at [10] above. The Tribunal’s conclusions, including in relation to the appellant’s credibility, were open on the material before it.

14. In relation to the appellant’s general claims, the evaluation of the evidence before the Tribunal, including the country information, was a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. I am satisfied that the Tribunal did not commit any jurisdictional error in its evaluation of the material before it, including the country information. It follows that I am also satisfied that the primary judge’s conclusion to the same effect was correct.

    DISPOSITION

15. The appeal will be dismissed.  The appellant must pay the first respondent’s costs of the appeal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:
Dated:        5 December 2013