SZSPT v MIBP
[2014] FCCA 1388
•1 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSPT v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1388 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – where applicant a young Tamil male from Sri Lanka – where applicant claimed fear of imprisonment for departing Sri Lanka from a place other than an approved port of departure in breach of Sri Lankan Act – where Tribunal found Act to be of general application and imprisonment for its breach to be a real risk faced by the population of Sri Lanka generally – whether Tribunal misconstrued s.36(2B)(c) of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2)(aa) , (2B)(c) , 46A(2) Immigration and Emigration Act 1948, s.45 |
| SZRTF v Minister for Immigration & Anor [2013] FCCA 91 SZSRY v Minister for Immigration & Anor [2013] FCCA 1284 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 1136 Zhang v Minister for Immigration and Multicultural Affairs [2000] FCA 1682 Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 SZMKY v Minister for Immigration and Citizenship (2008) 105 ALD 493 SZJRU v Minister for Immigration and Citizenship (2009) 108 ALD 515 SZOOU and Another v Minister for Immigration and Citizenship and Another (2011) 120 ALD 272 |
| Applicant: | SZSPT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 376 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 7 May 2014 |
| Date of Last Submission: | 7 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Rasan Selliah & Associates |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 376 of 2013
| SZSPT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this proceeding, which involves the review of a decision of the Refugee Review Tribunal made on 22 January 2013, the parties have agreed that the following represents the background.
The applicant is a Sri Lankan national of Tamil ethnicity. He arrived at Christmas Island by boat on 11 April 2012 [CB 98]. As such he was an, “offshore entry person” within the definition of that term in s.5 of the Migration Act 1958 (Cth)[1] and was unable to lodge a valid application for a visa in the absence of a determination from the Minister pursuant to s.46A(2) of the Act. That determination was made on 15 July 2012 [CB 23] and a Protection Visa application was lodged with the Department of Immigration on 23 July 2010 [CB 24].
[1] “Act”
A delegate of the Minister for Immigration rejected that application on 6 September 2012 [CB 88-107]. An application to the Tribunal was lodged on 11 September 2012 [CB 108-114]. The Tribunal held a hearing on 9 January 2013 [CB 132 – a detailed description of that hearing is at CB 186-197]. The Tribunal decision was made on 23 January 2013 [CB 117-226].
As with many young Tamil males who came to Australia this way the applicant’s claims fell into specific and generic categories. His specific claims included having been abducted by the LTTE in 2001 and being injured in an air attack on the vehicle in which he was being transported. Those injuries resulted in visible scarring. He claimed that he was caught in a security sweep in 2002 and identified as suspicious because of his scars and remained a person of interest. The applicant told that he left Sri Lanka in 2004 because of his fear of being harmed by the authorities and worked in Qatar until 2008 and again in that country from 2010 to 2011. He also worked in Kuwait in late 2010 until early 2011. He claimed that on his return he had been fingerprinted and photographed by the Sri Lankan army and that before he had left Sri Lanka he had been questioned by the Sri Lankan authorities about weapons.
The Tribunal, whilst accepting some of the applicant’s history, rejected his claim to have been mistreated or tortured in 2002 to 2004, that he left Sri Lanka in 2004 because of his fear of harm and that he had been of any interest to the authorities since at least 2004. The Tribunal rejected the applicant’s claim that he had been fingerprinted and photographed in 2011 or questioned by the authorities about weapons. The applicant’s generic claims related to his status as a young Tamil male from the north and as a returned asylum seeker who had breached s.45 of the Immigration and Emigration Act 1948[2] of Sri Lanka by departing that country from a place other than an approved port of departure. The applicant claimed that persons such as he would be questioned upon arrival and would be charged with leaving illegally. This could result in his imprisonment either whilst awaiting clearance from the authorities or as a punishment for breach of the law:
“If he were to be imprisoned he said it would be with criminals and he would be harmed by them. He said that it was very likely that he would be tortured or killed. He said there were riots in prisons in Sri Lanka.” [168] [CB 222]
[2] “I&E Act”
The applicant’s representative submitted that she believed that the applicant would be at risk if he were to be detained for illegal departure. She noted that the Australian High Commission said no one had been detained to date. She said that did not mean no one would be detained in the future. If he was detained, she submitted, or even if he was held before a decision, then the applicant would be at risk of harm whilst in detention or prison given Sri Lanka’s human rights record. The Tribunal asked the applicant why he thought he was more at risk of being harmed than the rest of the Sri Lankan population. “He said it was because of his past, his profile and his scars. He might be harmed while he was in prison.” The Tribunal asked if he meant he would be at a higher risk than other persons detained for leaving illegally. “He said that he did.” [171] [CB 223].
The Tribunal considered the applicant’s claims of this nature in its Findings and Reasons in respect of complementary protection where protection is given by s.36(2)(aa) of the Migration Act 1958 to:
“anon-citizenin Australia (other than anon-citizenmentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of thenon-citizenbeingremovedfrom Australia to areceivingcountry, there is a real risk that thenon-citizenwill suffersignificantharm.”
The Tribunal accepted that if he were to be returned to Sri Lanka as a failed asylum seeker the applicant would be questioned on arrival but it did not believe that he would have any profiles such as to bring him to the adverse attention of the authorities. The Tribunal did not consider being questioned amounted to significant harm. The Tribunal then turned to the possible effects of being charged with an offence under the I&E Act. It found that the I&E Act was a law of general application. The Tribunal found that his Tamil race would not result in him being treated differently to other persons who had broken this law having had regard to certain country information detailed in the decision record including a DFAT report that indicated that returning Tamils were not treated any differently in comparison to Sinhala or Muslim returnees. The Tribunal opined:
“I note that one matter I have to consider is whether the real risk of significant harm is one faced by the population as a whole. I accept that the Sri Lankan Government’s record on human rights is extremely poor and prison conditions are harsh. I accept further that every person in Sri Lanka who breaks a law of general application is subject to the penalties of that law, including imprisonment. As this punishment is a real risk faced by all the population I consider that it falls outside the complementary protection legislation.” [174] [CB 224]
By Further Amended Application filed in Court on 7 May 2014 the applicant moved on one ground. This was:
“2.The Tribunal committed jurisdictional error by misconstruing s.36(2B)(c) of the Migration Act.
Particulars
(a)Error in construing s.36(2B)(c) as pertaining to persons who may, at some future time bring themselves within the category of persons who are at real risk of serious harm.
(b)Error in equating, persons who have broken Sri Lankan law and thus exposed themselves to serious harm with the “population of the country generally”.
Section 36(2B)(c) is in the following form:
“(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) …
(b) …
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”
The applicant argues that the finding at [174] by the Tribunal is not a rejection of the applicant’s contention that he may face imprisonment or harsh conditions should he be arrested or detained as a result of his breach of s.45 of the I&E Act. He claims that a proper reading of s.36(2B)(c) requires for the exclusion to operate that the real risk of significant harm is one faced by the population generally and not by the non-citizen personally. He argues that imprisonment is not something the population generally risks as they don’t all break the law and are not in prison. He argues that s.36(2B)(c) covers disaster such as a general break down of lawful authority, war, natural disasters and so forth. He says that what it plainly does not cover are situations where individuals may in future act in a way that exposes them to risk:
“Yet, on the Tribunal’s findings the risk of imprisonment, from which the risk of serious harm arises, is that faced by those who break Sri Lankan law. This is a person has to act in a certain way to bring him or herself within the class, or category exposed to the risk. In construing the provision in this way the Tribunal has misinterpreted s.36(2B)(c) and thus committed a jurisdictional error.”[submissions at [17]]
Judge Driver gave some consideration to s.36(2B)(c) in two recent cases. In SZRTF v Minister for Immigration & Anor [2013] FCCA 91[3] his Honour considered the commonly claimed persecution arising out of the existence of the family planning laws of the Chinese Peoples Republic. He dealt with that particular claim shortly at [39]:
“In this case, by reason of s.36(2B)(c), the Tribunal’s finding that the laws were of general application and would not be applied in a discriminatory manner [54] meant that no issue, let alone an obvious issue, arose under s.36(2)(aa) of the Migration Act. That is sufficient to dispose of this ground. “
[3] “SZRTF”
Some six months later his Honour returned to the issue in SZSRY v Minister for Immigration & Anor [2013] FCCA 1284[4]. This was a case involving a person of Hazara ethnicity from the Ghazni province of Afghanistan. At [43] of that decision his Honour said:
“Subsection 36(2B)(c) of the Migration Act provides that the applicant will not be taken to face a real risk of significant harm if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. In other words, the applicant must face a real risk of significant harm in light of his specific circumstances. A general claim to fear harm, unrelated to the applicant’s specific circumstances, is insufficient to meet the requirements under the complementary protection provisions. “
[4] “SZSRY”
His Honour then turned to the question of whether the Assessor in that case failed to consider whether her findings as to the general situation in Ghazni Province raised a real risk of harm in terms of s.36(2)(aa) that was not disqualified by the terms of 36(2B)(c). At [61] his Honour opined:
“Section 36(2B)(c) of the Migration Act provides that the applicant will not be taken to face a real risk of significant harm if the Minister is satisfied that the risk is one faced by the population of the country generally and is not faced by the non-citizen personally. The Minister submits that this means that the applicant must face a real risk of significant harm in light of his specific circumstances. Thus, contrary to the written and oral submissions made on behalf of the applicant, a general claim to fear harm, unrelated to the applicant’s specific circumstances, would be insufficient to meet the requirements under the complementary protection provisions. However, that submission by the Minister, with respect, begs the question: can a risk of generalised violence be a circumstance specific to an individual faced by him or her personally?”
and found at [75]:
“Given the breadth of the findings made by the Assessor in respect of the applicant’s ethnicity, religion, the insurgent capabilities of the Taliban, the history of harm experienced by Hazaras in Afghanistan, and the country information about the risks peculiar to Ghazni province, the applicant was entitled to expect that his claims would be considered as a member of a class discernible from the rest of the population of Afghanistan.”
It has been suggested by the applicant that these two decisions are inconsistent and that I should follow the later one. However, I do not think this is necessarily the case. In SZRTF the Tribunal was dealing with what has been described and accepted for some considerable period of time by those charged with consideration of these matters as a law of general application. It is a law which applies to all parents in China, albeit that its enforcement might be applied differently throughout the country. The danger faced by all parents who breached the law is of exclusion of the child from medical and educational services or payment of a fine. This prejudice is only imposed upon parents who break the law by having more than one child.[5] It seems to me that there is no difference between this situation and that of a Sri Lankan national who leaves the country other than through a recognised port of departure. That constitutes a breach of the law but the law does not state that it applies differently to different ethnic groups within Sri Lanka and the Tribunal has found on the available evidence that it is not applied in a discriminatory way against Tamils. The facts of SZSRY are different, they relate to a situation that is faced in Ghazni Province. The vice that Judge Driver found in the Assessor’s decision was her failure to consider whether or not that situation was worse for persons of Hazara ethnicity or whether the situation was one of universal danger to which s.36(2B)(c) applied. This was done in the instant case.
[5] Amongst the cases in which the Courts have affirmed that fear of the Chinese one child policy does not necessarily constitute a ground for protection for being a law of general application are: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 1136, Zhang v Minister for Immigration and Multicultural Affairs [2000] FCA 1682, Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387, VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332, SZMKY v Minister for Immigration and Citizenship (2008) 105 ALD 493, SZJRU v Minister for Immigration and Citizenship (2009) 108 ALD 515, SZOOU andAnother v Minister for Immigration and Citizenship and Another (2011) 120 ALD 272.
The Court cannot accept that the applicant becomes a person who faces a real risk because he has broken the law. The real risk applies to any person who breaks the law and is thus a risk faced by the population generally.
For these reasons this application must be dismissed and the applicant must pay the first respondent’s costs assessed in the sum of $6,646.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 1 July 2014
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