SZSPI v Minister for Immigration

[2014] FCCA 897

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSPI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 897

Catchwords:
MIGRATION – Review of Independent Protection Assessor’s decision – whether assessor fell into jurisdictional error.

Legislation:  
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Applicant: SZSPI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: WENDY BODDISON IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number: SYG 324 of 2013

Judgment of: Judge Raphael

Hearing date: 23 April 2014

Date of Last Submission: 23 April 2014

Delivered at: Sydney

Delivered on: 23 April 2014

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr B Kaplan

Solicitors for the Respondent: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $5,750.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 324 of 2013

SZSPI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

WENDY BODDISON IN HER CAPACITY AS INDPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a young Tamil male from Sri Lanka who arrived in Australia on 1 December 2011. On 21 January 2012 he applied for a protection obligations evaluation and on 14 March 2012, the applicant was referred for an independent protection assessment. The applicant received advice from migration agents who made representations on his behalf. He was interviewed by the independent protection assessor who found, on 27 September 2012, that he did not meet the criteria for a protection (class XA) visa set out in s.36(2) of the Migration Act 1958 (Cth). The assessor recommended that he not be recognised as a person to whom Australia had protection obligations either under s.36(2)(a) or 36(2)(aa).

2. The applicant had provided the assessor with details of his claims to fall within the Convention which arose from the fact that he was a young Tamil male from the northern part of Sri Lanka.  He provided a history of involvement through his school with LTTE propaganda and of having been approached by government officials in a white van who sought to take him off for investigation.  He referred to continual visits to his home by such persons and that because of his fear of them he sought sanctuary in a Catholic Church where he apparently lived for two years from 2009 to 2011.  Most seriously, he claimed to have been abducted by the people in the white van.  He was taken to a room and beaten and tortured.  After his release, he went into hiding but managed to obtain a passport in Colombo and so found his way on to a vessel which came to Australia.

3. After the applicant had first made claims in the RPA process, he received a letter from the case support officer on behalf of the assessor inviting him to comment or respond to certain information which the assessor considered would, subject to any comments or response received, be the reason or part of the reason for making a negative recommendation.  The letter set out a number of inconsistencies in the applicant’s story which were of concern to the assessor.  His lawyers responded to that letter and the responses were taken into account when the assessor came to make her decision:

   “The reviewer has considered carefully the claimant’s claims and circumstances but finds that he is not a credible witness in relation to a large proportion of his claims.  Aspects of his account to the reviewer were significantly different to his account given at an earlier time.  This is not a matter of “little discrepancies” but rather went to fundamental aspects of his claims.  [98] [CB 238]

4. In the following paragraphs the assessor set out those discrepancies and she explained why they were of importance in her consideration of his credibility.  One of the more significant inconsistencies related to the story about him seeking sanctuary in the local Roman Catholic Church and the manner in which he attempted to prove that this had occurred.  The applicant had been unable to obtain any confirmation from the priest involved, but produced a statutory declaration from a Justice of the Peace whose evidence seemed to indicate that he had only remained in the church for approximately a year, whereas the applicant had told that he was in sanctuary for over two years.  The assessor noted that it was unclear the source of the deponent’s knowledge of any of the matters that he attested to.

5. The assessor also raised some concerns about the applicant’s academic history and the fact that there was a considerable shift in his account of being abducted.  At [121] [CB 242] the assessor makes reference to the fact that the applicant had made a claim on behalf of his brother having also been questioned by the authorities and was now in hiding not having been raised in the initial interviews.

6. The assessor dealt at length with what are commonly described as the generic claims of the applicant to be a member of a particular social group of either young Tamil males or young men in Sri Lanka and, finally, considered all the applicant’s claims under the rubric of complementary protection.

7. On 20 February 2013 the applicant filed an application with this court seeking a review of the assessor’s decision.  There was only one ground for review and that was:

   “That the decision of the second respondent, the Independent Protection Assessor, was affected by legal error.”

8. It is never easy for uneducated persons for whom English is not their first language to understand the complexities of administrative law and, in particular, the role of the court in considering these applications for review.  As explained to the applicant today, this is not an appeal from a decision in respect of which there can be heard arguments as to the facts, and nor is it a merits review process in respect of which those facts can be rehearsed for the purposes of convincing the court that the applicant is, indeed, a person to whom Australia owes protection obligations.  The court is limited to a consideration of the manner in which the assessor came to her conclusions and whether or not she provided the applicant with procedural fairness, or in some other way fell into jurisdictional error.

9. The applicant’s grounds of application do not assist the court in seeking out such an error, but in accordance with its usual practice the court has perused in detail the decision record for any hint of heterodoxy.  It has also listened to the applicant in his oral submissions.  He told the court that he was unable to provide evidence of the many problems that he had had in Sri Lanka because his abductor was not going to admit them.  This seems to me axiomatic, but there is nowhere in the decision record any indication that the assessor’s basis for concluding that the story of the abduction was unlikely had anything to do with the failure to produce a written statement from the guilty party that he had caused the suffering claimed.

10. The applicant also indicated that he had been unable to give details of what had occurred to his brother at the earlier interviews because what had occurred had come after those interviews.  But this does not appear to be correct as the record shows that the applicant told the assessor that his brother’s problems commenced whilst he, the applicant, was in Malaysia.  It is possible, of course, that the applicant was saying that he had no notice of these difficulties until after the first interviews.  But even if that was the case and this particular ground for concern about the applicant’s evidence was in truth invalid, it would appear to be an error within jurisdiction rather than an error of jurisdiction.

11. The other matters that the applicant brought to the attention of the court were pieces of evidence about the situation in Sri Lanka and the situation for returnees.  These were matters that were all considered by the assessor.  Her manner of consideration, by relying on independent country information, cannot be impugned even if some of that information may be considered by persons working in the field to have been viewed through somewhat rose-coloured spectacles.

12. It follows from the above that the court is of the view that this assessor did provide the applicant with procedural fairness, and it has been unable to see within the decision record any other basis upon which it could be said that the assessment proceeded under jurisdictional error.  Thus, the application must be dismissed and the applicant must pay the respondent’s costs which the court assesses in the sum of $5,750.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  5 May 2014