SZSQL v Minister for Immigration
[2013] FCCA 2158
•13 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSQL v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2158 |
| Catchwords: MIGRATION – Review of Independent Protection Assessor – whether Assessor considered applicant’s claims – no jurisdictional error. |
| Applicant: | SZSQL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | J BARTLETT IN THE CAPACITY AS THE INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 440 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2013 |
REPRESENTATION
The Applicant in person.
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
Subject to order 3, the applicant pay the first respondent’s costs in the sum of $6,646 or for such lesser amount as the first respondent, on the publication of these reasons, informs the Court the first respondent has actually incurred.
The first respondent is at liberty to apply to the Court within seven days for an order to vary the amount of the costs assessed under order 2.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 440 of 2013
| SZSQL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| J BARTLETT IN THE CAPACITY AS THE INDEPENDENT ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is not legally represented, seeks judicial review of a recommendation made by an Independent Protection Assessor (Assessor) not to recognise the applicant as a person to whom Australia owes protection obligations.
The only ground of review stated in the application is that the Assessor’s recommendation “was affected by legal error”. That does not identify any arguable ground for judicial review. At the hearing, however, the applicant, through an interpreter, made a number of submissions in support of his application. In these reasons for judgment, I will attempt to identify from those submissions, and consider, the grounds on which the applicant challenges the Assessor’s recommendation.
To properly undertake these tasks, it will be necessary to first set out the applicant’s claims for a protection visa, and the Assessor’s reasons for recommending that the applicant not be recognised as a person to whom Australia owes protection obligations.
Applicant’s claims before Assessor
The applicant is a national of Sri Lanka and an ethnic Tamil. The applicant’s claim for a protection visa was based on the following asserted matters, many of which were accepted by the Assessor.
From May 2009 to October 2009 the applicant lived in the Seven Four Refugee Camp (Camp) in Sri Lanka with his parents and his older and younger brothers. Shortly after the family arrived at the Camp, the applicant and his older brother, together with other young men, were questioned by members of the Sri Lankan Army about their possible involvement with the Liberation Tigers of Tamil Eelam (LTTE). Members of the Army also searched the bodies of the applicant, his older brother and the other young men for evidence of injuries or scars.
The applicant’s older brother had worked until 2008 as a mechanic at a workshop near Killinochchni which was managed or owned by a member of the LTTE. In about August 2009, the applicant’s older brother was arrested and detained. This alarmed the applicant’s parents and, wishing to prevent the same fate falling on the applicant, arranged to pay a bribe to a paramilitary group known as Karuna to secure the applicant’s release from the Camp and to assist the applicant to leave Sri Lanka. Members of Karuna arranged to obtain a passport for the applicant and a visa, and arranged to transport the applicant from the camp to Colombo. The applicant travelled to Bangkok where he stayed for a few days. He then travelled to Malaysia and, from there, to Indonesia.
The applicant claimed he fears persecution for a number of reasons if he were to return to Sri Lanka. First, because he left the Camp without the government’s permission, he would have to explain on his return how he did that, and this would lead him to disclose he had been assisted by Karuna. Second, he feared he would face the same fate as his brother. He claimed that, after he left, the Army had returned to the Camp looking for him; and the Army continued to regularly make enquiries of the applicant’s parents as to the applicant’s whereabouts after his parents had been released from the Camp. Third, the applicant claimed that the Sri Lankan government regarded all Tamils who travelled to Australia by boat as members of the LTTE.
Assessor’s reasons
The Assessor accepted that the applicant’s brother worked at a garage workshop which was owned by a LTTE cadre;[1] that in August 2009 the applicant’s older brother was arrested and taken from the camp and detained for fourteen months;[2] that the applicant left Sri Lanka in October 2009 because he and his family feared the applicant may be arrested;[3] and that the applicant had a subjective fear that he would be persecuted for the reason of an imputed political opinion that he was associated with the LTTE.[4] The Assessor, however, concluded that the applicant’s subjective fear was not well founded; and the Assessor so concluded for a number of reasons.
[1] CB276, [90]
[2] CB276, [90]
[3] CB277, [91]
[4] CB277, [91]
First, the Assessor found that the applicant was not under any suspicion by the authorities at the time he left the Camp in September 2009;[5] had he been under suspicion he would have been arrested at the time his older brother was arrested.[6] Second, the brother’s release from detention in 2010 indicates that the authorities were satisfied that the applicant’s brother posed no security threat as a consequence of his past employment with a LTTE business.[7] Third, none of the applicant’s claimed circumstances encompass any of the activities identified by country information as leading the authorities to impute a person as being an LTTE supporter.[8] Fourth, the current UNHCR guidelines state that, in light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of Sri Lanka.[9]
[5] CB277, [92]
[6] CB277, [92]
[7] CB277, [93]
[8] CB278, [94]
[9] CB278, [94]
The Assessor also found the applicant did not have a well founded fear of persecution or harm on account of the authorities considering him to be associated with LTTE because he went to Australia by boat.[10] Although the applicant had identified instances where returnees had been arrested, the returnees were arrested on criminal charges, and this did not satisfy the Assessor that the Sri Lankan authorities consider all persons who go by boat to Australia are members of or associated with the LTTE.[11]
[10] CB280, [97]
[11] CB280, [97]
The Assessor did not accept that the applicant would face harm from the authorities or Karuna because of the method by which he left the Camp in October 2009. That was so because the Assessor found the applicant had left Sri Lanka on his own passport with a one month tourist visa for Malaysia and, therefore, the applicant had left Sri Lanka lawfully.[12] That, in turn suggested to the Assessor that, at the time of his departure, the applicant was not a person of interest to the authorities.[13] Further, the Assessor relied on the “marked change in the attitude by the Government towards Tamils from the north as reflected in the UNHCR’s superseded 2009 Guidelines”.[14]
[12] CB280, [98]
[13] CB280-281, [98]
[14] CB281, [98]
Applicant’s submissions
Before me, the applicant began his address by stating facts in relation to his claim for a protection visa. The applicant confirmed that the facts he stated before me were the same facts that had been put to the Assessor.[15]
[15] T5.40
After I suggested to the applicant that he needed to address the decision or recommendation of the Assessor and why that decision was not made according to law, the applicant made a number of submissions. First, the applicant submitted that “the reasoning of the independent protection assessor is incorrect in that all evidence points to one direction, but the evidence of the assessor points to different direction”.[16] I asked the applicant whether it was his contention that the Assessor made the recommendation she did in the absence of any evidence to support it. The applicant responded:[17]
He [sic] has not got into my shoes to understand the atrocities I had faced in the past and the things that would happen to me in the future. I could only put to her the claims the way I was able to put to her.
[16] T6.30
[17] T7.15
Secondly, the applicant submitted that the Assessor made an error in law “because the decision . . . is not concerned with the claims I have put to the assessor”.[18] The applicant further submitted that the Assessor “has not taken into consideration all the claims I put to her”.[19] In support of this submission, the applicant said:[20]
I have referred to her about my elder brother and the problems he had, and I also spoke about being associated with my elder brother. And the independent protection assessor has taken an arbitrary decision at the end.
[18] T6.45
[19] T7.40
[20] T7.42
Jurisdictional error?
The first of the two grounds I have identified above is no more than a submission, emphatically expressed, that the Assessor was incorrect to conclude that the applicant did not have a well founded fear of persecution. That does not disclose any jurisdictional error. And to the extent the applicant intended to submit that the Assessor arrived at her conclusions in the absence of any evidence, such submission cannot be accepted. The evidence to which the Assessor referred in her reasons, and which I have identified earlier in these reasons, was reasonably capable of supporting the Assessor’s conclusion that the applicant’s fear of persecution was not well founded.
As to the second ground I identified above, I am satisfied the Assessor considered the applicant’s claims, including so much of his claim as relied on what he stated had occurred to his brother. The Assessor recorded and accepted the applicant’s evidence about the arrest, detention and eventual release of the applicant’s brother. The Assessor also considered the significance of these facts, but in a manner which was adverse to the applicant. The Assessor regarded the arrest of the applicant’s brother, but not of the applicant, as a reason for concluding that the authorities did not have any interest in the applicant. And the Assessor regarded the release of the applicant’s brother as a reason for concluding that the applicant’s brother was no longer regarded as a security risk.
Conclusion and disposition
The applicant has not demonstrated that the Assessor arrived at her recommendation as a result of any jurisdictional error. There is nothing in the Assessor’s reasons for decision or in the material that is before the Court that suggests that the Assessor undertook her tasks other than according to law.
In these circumstances, I propose to dismiss the application and order that the applicant pay the Minister’s costs in the amount of $6,646 or for such lesser sum as the Minister on the publication of these reasons informs the Court the Minister has actually incurred. I also propose to grant the Minister leave to apply to the Court within seven days for an order varying the amount of the costs I propose to award.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 13 December 2013
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