SZSNS v Minister for Immigration

[2013] FCCA 1809

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSNS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1809

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.65, 424AA, 477

Applicant: SZSNS

First Respondent: MINSITER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 130 of 2013

Judgment of: Judge Raphael

Hearing date: 31 October 2013

Date of Last Submission: 31 October 2013

Delivered at: Sydney

Delivered on: 31 October 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $4,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 130 of 2013

SZSNS

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 became an unauthorised boat arrival on or around 17 February 2012. On 28 May 2012 he made an application for a protection (class XA) visa under s.65 of the Migration Act 1958 (Cth)[1].  A delegate of the Minister refused to grant a protection visa on 23 August 2012 and the applicant applied to the Refugee Review Tribunal for review of that decision.  He attended a hearing before the Tribunal together with his migration agent and on 19 December 2012 the Tribunal determined to affirm the decision under review. 

   [1] The Act.

2. The basis of the applicant’s claim that he was a person to whom Australia owed protection obligations was that as young male Tamil from the north part of Sri Lanka he had a fear that he would be considered to be a LTTE supporter and liable to be persecuted by the Sri Lankan government.  He was also concerned that as an unsuccessful asylum seeker he would be persecuted upon his return to Sri Lanka. 

3. These two general claims were buttressed by a particular claim that in January 2011 whilst patrolling for a sports club that he was the treasurer of he came across a “grease devil”.  He and his fellow club members pursued this “grease devil” who allegedly went into a police station.  The next day a letter was written by the president of the sports club complaining to the police and it is said that as a result he and some colleagues were detained for 14 days, interrogated, beaten and accused of being LTTE members or sympathisers. 

4. About 10 months later, in October 2011, the club had invited some government ministers or other VIPs to the club and the applicant and two of his friends recognised one of the minister’s body guards as the “grease devil”.  One of the colleagues of the applicant who reported that the body guard was the grease devil had been forcibly picked up by people in a white van and disappeared.  The applicant took this as a warning that he would be likely to suffer the same treatment so he went into hiding and made arrangements to leave the country.

5. The Tribunal questioned the applicant upon his story and made it clear to him that it had some difficulty in accepting that he was able to recognise this individual some 10 months after the original incident that took place in the dark:

   “…The Tribunal raised that it especially found the evidence regarding the grease devil wearing springs on his feet difficult to accept.

   …

   The Tribunal raised that it also found it difficult to accept that the male grease devil would attack a female in an area where there was a group of males from the sports club patrolling nearby.  The Tribunal also raised that although it heard reports of sexual assault and biting by the grease devil, it had not read reports about them cutting people or carrying knives.  The Tribunal also raised that it had difficulty accepting that the applicant had seen a person who he described as the grease devil again in January 2011 and had been able to identify him at a meeting in October 2011.” [[35] CB152]

6. The Tribunal put to the applicant certain information that it believed, subject to the applicant’s responses, would be the reason or part of the reason for affirming the decision in a manner consistent with s.424AA of the Act. One of those pieces of information was the inconsistency in the applicant’s statement concerning his membership of the sports club.

7. In its findings and reasons the Tribunal considered the applicant’s claims individually.  First, it considered whether he had a well-founded fear of persecution because he was a male Tamil from an area formerly controlled by the LTTE.  The Tribunal, utilising independent country information and in particular the UNHCR guidelines, came to the conclusion that there was no available generic claim by persons in the applicant’s position. 

8. The Tribunal went on to consider the claims arising out of the applicant’s interaction with the “grease devil” in January 2011.  The Tribunal accepted the existence of “grease devils” but did not accept the applicant’s evidence about his interaction with one.  The Tribunal found it to be fanciful and lacking in credibility for the reasons given at [[61] CB160]. 

9. The Tribunal also found that it could not accept or be satisfied that the applicant recognised the grease devil as a bodyguard of the VIP in October 2011 for the reasons given at [[62] CB160] nor that the applicant’s friends or colleagues were apprehended after advising the VIP that they had recognised his bodyguard as a “grease devil”.

10. The Tribunal also considered the applicant’s claim for protection on the basis that as a failed asylum seeker or a person who had exited Sri Lanka illegally he would face persecution.  Again, using independent country information the Tribunal came to the conclusion that he would not face serious harm or be persecuted upon his return to Sri Lanka for those reasons although it accepted that he would be closely questioned. 

11. Finally, the Tribunal considered whether or not the applicant had a well-founded fear as a result of him being a member of the sports club that had been established in his village whilst it was under LTTE control:

    “There has been limited evidence provided to support this submission, and no evidence from the applicant suggesting that he has had any issues due to his association with the club in the past, or that he foresees such issues arising in the future. Nor is such an association reported in the country of origin information before the Tribunal.  In addition, as raised by the Tribunal during the hearing, in the entry interview the applicant claimed to have ceased his membership of the club.   Although this was disputed by the applicant in the hearing, the applicant did say that his membership had since ended.  As such, based on the evidence before it, the Tribunal finds that this ground has not been established.” [[66] CB161].

12. The Tribunal went on to consider the applicant’s claims in the context of complementary protection and for the reasons given at [69 and 70] came to the view that there was no real risk that he would suffer significant harm should he return to Sri Lanka.

13. On 24 January 2013 the applicant filed an application with this court seeking a review of that decision. The applicant indicated that he needed an extension of time but it is not clear whether that is, in fact, the case. I am told by Ms Wong who appears for the Minister that the applicant was out of time by one day and I am prepared to grant him the extension under s.477 of the Act.

14. The application, whilst giving a reason for the delay, does not really give any ground of application save that:

    “the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.”

15. No particulars of the alleged error were given although the applicant has had an opportunity to file an amended application between 9 April 2013 when the matter received a first court date and 18 June 2013 which was the date in Judge Lord Jones’ orders by which he had to file an amended application.  The applicant did, however, obtain assistance through the Minister’s scheme, so that when he came and told me today that he did not have time or the money to obtain a lawyer this did not strike much of a chord with the court.

16. The applicant told me that he did not know why he was disbelieved, and he repeated that he would have problems if he went back to Sri Lanka.  It appears to the court that the applicant is in this way seeking impermissible merits review of the Tribunal’s decision.  The decision record of the Tribunal is clear.  It rehearses all the claims made by the applicant and deals with them.  It gives reasons based upon available evidence for not being satisfied of the applicant’s claims. 

17. In this way the Tribunal appears to have complied with all of the provisions of the Act relating to the hearing and its decision.  The court is unable to say that it fell into jurisdictional error in the manner in which it reached its decision.  For that reason the application must be dismissed and the applicant must pay the respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  6 November 2013