SZSRG v Minister for Immigration and Border Protection

[2014] FCA 550

FEDERAL COURT OF AUSTRALIA

SZSRG v Minister for Immigration and Border Protection [2014] FCA 550

Citation:	SZSRG v Minister for Immigration and Border Protection [2014] FCA 550
Appeal from:	SZSRG v Minister for Immigration & Anor [2014] FCCA 173
Parties:	SZSRG v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 205 of 2014
Judge:	NICHOLAS J
Date of judgment:	28 May 2014
Legislation:	Migration Act 1958 (Cth) ss 36(2)(aa), 424A, 424AA
Cases cited:	Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 SZBYR & Anor v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505
Date of hearing:	27 May 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	25
Counsel for the Appellant:	Mr A Kumar
Solicitor for the Appellant:	Rasan T. Selliah & Associates
Counsel for the Respondents:	Ms AM Mitchelmore
Solicitor for the Respondents:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 205 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSRG
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	28 MAY 2014
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 205 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSRG
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	28 MAY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court given on 7 February 2014.  By his judgment the primary judge (Judge Manousaridis) dismissed the appellant’s application for review of a decision of the second respondent (the Tribunal) which affirmed the decision of a delegate of the first respondent (the Minister) not to grant the appellant’s application for a protection visa. 

2. The appellant is a citizen of Sri Lanka and a Tamil who arrived in Australia on 11 April 2012.  On 2 July 2012 the appellant lodged an application for a protection visa.  In a statutory declaration accompanying his application for a protection visa, the appellant claimed to fear persecution on the basis of his imputed association with the Liberation Tigers of Tamil Eelam (LTTE), his Tamil ethnicity and his imputed political opinion as an opponent of the Tamil People’s Liberation Party (TMVP).  According to the appellant’s statutory declaration:

   ·The appellant believes that his brother was killed in 1988 by the Sri Lanka Task Force, and that his father blamed his mother for his brother’s death.

   ·In July 1993 the appellant was taken into custody, beaten and tortured by police, forced to sign a confession, and not released until October 1994 pursuant to a court order.

   ·The appellant lived and worked in Dubai between 2006 and 2009.  Upon his return to Sri Lanka in 2009 he joined the Chenkalady Auto Union and worked as a three wheeler auto driver.  On 10 January 2012 he was involved in an altercation at the auto-rank with another driver who was the brother of an influential member of the TMVP by the name of Rudra Master. 

   ·The next day Rudra Master and five other men came to the auto-rank.  Three of the men, including Rudra, beat him.  Rudra threatened to shoot the appellant or at least indicated that he was “authorised” to do so.   The appellant then went to the police station in Eravur but was followed by Rudra. 

   ·At the police station the police persuaded the appellant not to make a complaint.  People associated with Rudra Master subsequently went to the appellant’s house to look for him. 

   ·The appellant fears he will be beaten and shot if he returns.  He fears Rudra Master, the men who work for him, Rudra’s brother, the TMVP and the Sri Lankan police. 

3. The Tribunal convened a hearing at which the appellant gave evidence.  In its reasons for decision the Tribunal concluded:

   ·the appellant did not have a well-founded fear of persecution in the reasonably foreseeable future for a Convention reason if he was to return to Sri Lanka;

   ·there are not substantial grounds for believing that there is a real risk that the appellant will suffer significant harm if returned to Sri Lanka.

4. It is apparent that the Tribunal did not accept important aspects of the appellant’s account of events.  In particular, the Tribunal said at [74]-[75] of its reasons:

   [74]During the hearing the Tribunal raised concerns that it had regarding the credibility of this evidence regarding the dispute overall. This included doubts as to whether the brother of such a person as Rudra Master (as the applicant/agent had described him as powerful and influential) would work in such a lowly paid job (as the applicant had said he could only sustain himself on the income); secondly whether such a powerful person as Rudra Master would expose himself in such a public display of violence in threatening to shoot the applicant in public; thirdly whether or not Rudra Master still held such a position of power as to have such influence over the applicant or any other people; fourthly, apparent changes to the applicant’s evidence regarding when he was visited at his home by people associated with Rudra Master, with the applicant’s evidence appearing to change. That is, in his written statement the applicant did not refer to people associated with Rudra Master visiting his home premises during the two-day period immediately following the incident. However, during the hearing the applicant said that he was visited on several occasions during this initial two days at his home. Then later in the hearing the applicant again amended his evidence to say that it was over a period of one week (not two days, contradicting his written submission). The Tribunal also raised that as the applicant’s wife was still living in his former residence and that this did not support a finding that she was either threatened or fearful of the people who came to the house. The applicant responded by saying that they know that he is now in Australia, so they have stopped searching for him. The Tribunal does not find this response to be plausible.

   [75]After considering the evidence before it the Tribunal finds that the alleged event with Rudra Master and/or his brother did not occur. As a result the Tribunal finds that the applicant does not have a well-founded fear of persecution in the reasonably foreseeable future based on Rudra Master and/or his brother and/or the TMVP arising from an alleged incident between the applicant and Rudra Master’s brother.

5. Before the primary judge the appellant contended that the Tribunal committed the following jurisdictional errors:

   ·failing to comply with s 424AA or s 424A of the Migration Act 1958 (Cth) (the Act) (Ground 1);

   ·failing to comply with s 425 of the Act (Ground 2);

   ·failing to consider a claim for protection made by the appellant based on membership of a particular social group (Ground 3);

   ·failing to consider the matter of complementary protection (Ground 4);

   ·reaching a decision that was illogical and irrational, and that no reasonable decision-maker would have made (Ground 5).

6. The learned primary judge dealt with each of these contentions separately and comprehensively.  I shall deal with the appellant’s appeal against the primary judge’s rejection of them one by one.

   GROUND 1

7. The failure to comply with s 424A(1) or s 424AA was said to arise out of the Tribunal’s use of the appellant’s statutory declaration and matter contained therein which was said by the Tribunal to be inconsistent with evidence given by the appellant at the hearing. The primary judge examined the meaning and scope of s 424A and s 424AA at [16]–[26] of his judgment. The primary judge rejected the appellant’s argument that there was any failure to comply with s 424A(1) or s 424AA arising out of its use of the statutory declaration for two reasons. First, his Honour held at [29] of his reasons:

   The Tribunal’s perception of inconsistency between what the applicant said in his statutory declaration and what he said to the Tribunal is not “information” for the purposes of s.424A or s.424AA of the Act. It is not a document or evidentiary material; nor is it information that, by its terms, denies, rejects, or undermines the applicant’s claim.

   Secondly, his Honour held at [31] that the statutory declaration, and the matter contained therein, even if constituting information to which s 424A(1) might apply, was information that the appellant gave during the process that led to the decision under review and was therefore within the exception created by s 424A(3)(ba).

8. As to the first point, the primary judge declined to follow the judgment of Flick J in SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 on the basis that in that case Flick J gave the word “information” as used in s 424A(1) a much broader meaning than is justified by the judgment of the plurality in SZBYR & Anor v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]-[18]. On appeal the appellant submitted that the primary judge was wrong not to follow SZNKO, but the submission was not developed in either oral or written submissions.

9. It is not necessary to decide whether there is any inconsistency between SZBYR and SZNKO. Clearly, neither s 424AA nor s 424A required the Tribunal to provide the particulars the appellant says he should have been provided because, regardless of how that question is resolved, the information which the appellant says attracted the obligation was information of the kind referred to in s 424A(3)(ba).

   GROUND 2

10. The use made by the Tribunal of the appellant’s statutory declaration was also said to give rise to a failure to comply with s 425. The particulars given in support of this argument were precisely the same as those given in support of the argument based on s 424A. The appellant submitted, in essence, that he was denied procedural fairness by reason of the Tribunal not giving him adequate notice of what it perceived as inconsistencies between the his statutory declaration and his oral evidence.

11. The primary judge rejected this argument. He extracted a portion of the transcript of the hearing before the Tribunal which clearly shows that the Tribunal drew the appellant’s attention to what the Tribunal referred to during questioning of the appellant as a contradiction between his statutory declaration and his oral evidence. There is no reason to doubt the correctness of the primary judge’s rejection of Ground 2.

    GROUND 3

12. This ground was particularised in para 3 of the appellant’s amended application for review by reference to paras 67–73 of a written submission (the migration agent’s submission) prepared by the appellant’s migration agent.  The relevant ground states:

    The second respondent committed jurisdictional error when it failed to consider the Applicant’s particular social group/s.

    Particulars:

    3.1The Applicant made claims to be considered as a particular social group of asylum seekers [paras 67–73 of the migration agent’s submission] and the attributes / characteristics are particularly highlighted at [paras 67–73 of the migration agent’s submission].

    3.2The Second Respondent has not considered the Convention nexus claim of social group at all.

13. It is apparent that both the primary judge and the Tribunal understood the appellant’s claim to be based upon a fear of persecution as a failed asylum seeker who would be interrogated upon arrival in Sri Lanka due to:

    (i)the applicant’s Tamil ethnicity;

    (ii)his imputed LTTE political opinion;

    (iii)his illegal departure from Sri Lanka;

    (iv)his lack of any original passport or travel documentation;

    (v)his application as an asylum seeker in Australia; and

    (vi)his signed confession.

    The primary judge found at [65]-[67] that this was the only claim made by the appellant and that it was considered by the Tribunal.  However, as his Honour pointed out, the Tribunal also considered whether the appellant had a well-founded fear of persecution by reason of each of these characteristics.  The primary judge rejected the appellant’s contention that these were matters the Tribunal failed to consider. 

14. The Tribunal’s consideration of these matters is apparent from [72]–[86] of the Tribunal’s reasons for decision.  There is no reason to doubt the correctness of the primary judge’s rejection of Ground 3.

    GROUND 4

15. It was contended by the appellant before the primary judge that the Tribunal failed to consider the appellant’s claim under the complementary protection provisions of the Act, in particular, s 36(2)(aa). This contention was rejected by the primary judge for two reasons.

16. In relation to fear of Rudra Master, the Tribunal rejected the appellant’s account of his dealings with that person and his brother.  That left nothing for the Tribunal to consider in the context of the complementary protection provisions arising out of the appellant’s dealings with Rudra Master and his brother.  As to the appellant’s claim that he had other reasons to fear that he might suffer significant harm at the hands of others, this was also considered by the Tribunal.  The primary judge therefore rejected Ground 4.

17. The appellant also submitted that the Tribunal failed to consider, in the context of complementary protection, more general aspects of the appellant’s agent’s submissions to the Tribunal including, in particular, prison conditions: see [104]–[118] of the migration agent’s submission.  It is not at all apparent to me that this submission was made to the primary judge.  In any event, I am not satisfied that the Tribunal failed to consider these matters.  Country information relevant to the Tribunal’s consideration of these matters is referred to in detail at [62]–[69] of the Tribunal’s reasons.  The Tribunal said at [85]:

    Country of origin information suggests that returnees may be delayed on re-entry in order to enable processing and criminal checks. The information also referred to the possibility of people being charged with an offence, but stated that in reality this is seldom enforced, and if the authorities consider the person has unknowingly been duped into joining a people smuggling venture they will not be fined or charged. In addition, Sri Lanka’s Attorney-General’s Department has stated that people being intercepted on people smuggling boat ventures in Sri Lanka are considered to be “victims”. The information also suggests that all returnees are treated the same, regardless of ethnicity. The Tribunal does not consider either the processing, questioning, or delay to amount to serious harm or persecution as per the Convention. As a result the Tribunal finds that the applicant does not have a well-founded fear of persecution due to either having left Sri Lanka illegally and/or returning as a failed asylum seeker.

    [emphasis added]

18. This appears to me to demonstrate that the Tribunal did give its consideration, including in the context of the complementary protection provisions, to what might happen to the appellant if he were to return to Sri Lanka as someone who had left the country illegally and had returned there as a failed asylum seeker.

    GROUND 5

19. It was contended by the appellant before the primary judge that the Tribunal committed jurisdictional error by reaching a conclusion that was illogical or irrational and that no reasonable decision-maker could have reached it.

20. The legislature is taken to intend that a statutorily conferred discretionary power be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [63] per Hayne, Kiefel and Bell JJ. Their Honours added at [76] that it may be open to conclude that a decision is unreasonable if it “lacks an evident and intelligible justification”.

21. In the present case the appellant argued that the primary judge should have found that the Tribunal’s decision was unreasonable because it was predicated upon the following two inferences which were said by the appellant to lack any evidentiary basis:

    ·siblings of influential individuals cannot have lowly paid jobs;

    ·influential individuals do not have public outbursts of violence.

22. The primary judge found at [76] and [80] respectively that the Tribunal did not draw either of these conclusions. That his Honour was correct in so finding is clear from [74] of the Tribunal’s reasons (reproduced at [4] above).

23. The appellant also submitted that the Tribunal rejected the appellant’s account of events involving Rudra Master because Rudra Master no longer holds a position of influence.  But this is not what the Tribunal did.  As is apparent from [74] of the its reasons, the Tribunal had doubts about various matters including whether or not Rudra Master still held a position of power and influence.  That is certainly a matter that was relevant to the question whether, even if one accepted other aspects of the appellant’s account of events, he would continue to hold a well-founded fear that he might be persecuted or harmed by Rudra Master.  The primary judge dealt with a related but quite different contention as follows at [81]–[82] of his reasons:

    [81]The applicant submits that it was irrational for the Tribunal to have doubts that the incident with the politician and politician’s brother did not occur because it had doubts about whether the politician held power at the time of the incident.

    [82]In my opinion, whether or not the politician was in power at the time of the claimed incident was relevant to whether the incident occurred. The applicant’s case was that the politician was a member of the TMVP and the chairman of a local authority. It was open to the Tribunal to rely on evidence which raised doubt about whether the politician was a member of the local authority to doubt the applicant’s evidence that an incident occurred involving a person who was a member of a particular local authority.

24. The primary judge no doubt dealt with this issue in this way because the appellant put the submission recorded in [81] of his Honour’s reasons.  However, the submission considered by his Honour appears to me to have been based upon a misinterpretation of [74] of the Tribunal’s reasons for decision.  In any event, I am not persuaded that the Tribunal’s decision was unreasonable in the legal sense, or that the primary judge erred in rejecting the appellant’s submission that it was. 

    DISPOSITION

25. The appeal will be dismissed.  The appellant must pay the Minister’s costs. 

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:
Dated:       28 May 2014