SZSRL v Minister for Immigration

[2013] FCCA 2206

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSRL v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2206

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal failed to give proper, genuine and realistic consideration to evidence before it about applicant’s mental condition – whether Tribunal erred in finding that the applicant was able to participate in the hearing before it – whether Tribunal required to make enquiries about applicant’s medical condition – whether Tribunal failed to consider applicant’s claim that he feared persecution from authorities as a young Tamil male imputed to be a supporter of groups opposed to government – whether Tribunal misinterpreted the term “well-founded fear of persecution” – whether Tribunal required to consider relocation if the applicant were to return to home country – whether Tribunal erred in its consideration of complementary protection.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 65, 425, 427(1)(d)

Minister for Immigration & Anor v SZJSS (2010) 243 CLR 164
Minister for Immigration & Anor v SZNPW (2010) 183 FCR 575
Minister for Immigration & Anor v SZGUR (2011) 241 CLR 594

Applicant: SZSRL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 553 of 2013

Judgment of: Judge Raphael

Hearing date: 10 December 2013

Date of Last Submission: 10 December 2013

Delivered at: Sydney

Delivered on: 10 December 2013

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr P Knowles

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. Application dismissed. 

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,700.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 553 of 2013

SZSRL

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 was an unauthorised boat arrival into Christmas Island. On 13 July 2012 he applied for a protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth)[1].  On 15 August 2012 a delegate of the Minister refused to grant him a protection visa and the applicant applied for a review of that decision from the Refugee Review Tribunal.  He was assisted in his application by a firm of migration agents and lawyers who prepared a series of submissions on his behalf.  He was interviewed by the Tribunal and, after the Tribunal hearing, some further submissions were made by his migration agent.  On 20 February 2013 the Tribunal determined to affirm the decision not to grant the protection visa. 

   [1] “Act”

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were both generic and individual.  He claimed to fear harm in Sri Lanka as a result of his Tamil ethnicity, his imputed support of the Liberation Tigers of Tamil Eelam and his status as a failed asylum seeker.  He also claimed that on 9 March 2008 members of the TMVP, a group then associated with the LTTE, entered his home, beat him and detained him until the next day.  He also claimed that members of the CID regularly visited his jewellery shop and extorted gold or money from him.  He said that in January 2009 he had attended a demonstration against the police special task force in his home village.  He claimed that he was videotaped and photographed whilst at the demonstration and feared that if he was returned to Sri Lanka that activity would be held against him and as a result he would suffer incarceration and torture.  He told that in May 2011 he was arrested on false accusations of purchasing stolen gold.  He said that the CID officer from whom he had purchased some gold the day previously had come again and demanded that he bought the gold from him.  When he bought the gold he was accused of buying stolen gold.  He was required to give money and jewellery to the CID officer who detained him.  He told that in February 2012 the CID visited his house and demanded money.  He paid them approximately 2000 rupees, although previously the demands made to release him from detention as a result of the false charge against him had been 100,000 rupees. 

3. The Tribunal dealt with the applicant’s claims in considerable detail and questioned him upon them.  The Tribunal pointed out to the applicant occasions when his claims appeared to be inconsistent as between what was being told to the Tribunal and what he had told either to the delegate or in his interviews and statements.  The Tribunal referred to independent country information concerning the situation of Tamils returning to the country and of Tamils who had remained in the country since the end of the civil war.  The Tribunal dealt in its findings and reasons with each claim made by the applicant in turn, commencing with the general claim of race.  The Tribunal came to the conclusion that the applicant had not ever suffered harm in Sri Lanka just because of his Tamil ethnicity or race:

   “[85]…and given the independent country information available to the Tribunal, I am not satisfied there is a real chance that he would suffer serious harm amounting to persecution for such reason if he were to return to Sri Lanka.” [CB 278].

4. The Tribunal then turned to the claim of political opinion.  This was subdivided into the elements of that general claim advanced by the applicant.  It commenced with his claims of abduction by the TMVP, which the Tribunal considered had been the subject of inconsistent and implausible evidence.  At [88] [CB 279] the Tribunal sets out in some detail why it came to that conclusion.

5. At [89] the Tribunal commences to deal with the applicant’s attendance at the protest demonstration.  The Tribunal did not make a finding that the applicant had not attended the demonstration but came to the conclusion that it could not be satisfied that attending such a public event was plausible or consistent with the actions of a person who had been in hiding in Colombo in fear that he could be recruited or killed by the TMPV or LTTE.  At [CB 281] the Tribunal concludes:

   In this context, I note as well that the intelligence allegedly given to the police about the Applicant’s participation in such a demonstration did not have any consequences for him.  It did not affect his ability to leave Sri Lanka for Saudi Arabia three months later or return to Sri Lanka after a further four months, using a genuine passport in his own name on both occasions.  Nor does he claim that it lead to any subsequent attention by the police or other authorities to him, the two incidents of mistreatment by the CID having been motivated, he claims, by their interest in extorting money from him.

6. The Tribunal moved on to consider the CID extortion.  The Tribunal noted its grounds for having some concerns about the applicant’s accounts which it believed diverged markedly.  In particular, the Tribunal was unimpressed by the claim that he had been required to pay the police 2000 rupees, which was only about 13 or 14 dollars, and divided amongst the five policemen he claimed were extorting the money was less than $3 each.  The tribunal considered that that could not be enough to justify the effort of going to the applicant’s house to extort money from him.

7. The Tribunal went on to consider the applicant’s claim to be a member of a particular social group as a failed asylum seeker who had left the country unlawfully.  The Tribunal took into consideration the considerable amount of independent country information that is now available upon this claim and concluded at [118]:

   “[118]I am not satisfied that members of the particular social group consisting of failed asylum seekers who have left Sri Lanka illegally are, in fact, harmed by their membership of this group.

   [119] As I am not satisfied that the Applicant has ever come to the adverse attention of the Sri Lankan authorities because of an adverse political opinion or for any other reason I do not accept that, on return to Sri Lanka, he would be required to do more than attend one or more interviews at the airport, possibly extending over a number of hours, before being allowed to leave.  I am not satisfied that, then or subsequently, he would be detained or imprisoned or would suffer any form of mistreatment for reason of his membership of the particular social group consisting of failed asylum seekers who have left the country illegally. [CB 289]

8. The Tribunal also considered the applicant’s claim to be a member of the particular social group of Tamil jewellers, who are perceived to be wealthy or wealthy Tamil business owners.  The Tribunal dismissed this claim on the basis that it was not really significantly argued by the applicant and, in any event, he only operated his own business for a very short period of time and, generally speaking, he was an employee:

   “[121]He does not claim to have enjoyed any particular wealth in these various employments and there is nothing in the information before the Tribunal to suggest a reason why wealth would be imputed to him. [CB 219]

9. The Tribunal then went on to consider the question of complementary protection.  It dealt with that matter in one paragraph at [126] [CB 290]:

   “[126]As noted, I am not satisfied there is a real chance that the Applicant would, in fact, be harmed on return to Sri Lanka for any of the reasons which have been advanced – his Tamil race or ethnicity, his imputed political opinion or his membership of the particular social group consisting of failed asylum seekers who have departed illegally.  Having considered his claims together with the independent country information available to the Tribunal I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.”

   At the directions hearing the Court made reference to this very abbreviated manner of dealing with a claim.  This has now been addressed by the Minister and will be dealt with later in these reasons.

10. On 20 March 2013 the applicant filed an application with this Court seeking review of the Tribunal’s decision.  The grounds of that application are six fold and are somewhat prolix.  They appear to have been prepared by a person other than the applicant.  I will not set those grounds out in extenso but will deal with each in turn.

11. The first ground can be summarised as a failure to give proper, genuine and realistic consideration to the evidence before the Tribunal in relation to the applicant’s mental health.  The applicant claims to be suffering from post-traumatic stress disorder and this affected his ability to respond properly to questions.  As Mr Knowles says in his helpful written submissions the Tribunal went into this matter in some detail.  It asked the applicant whether he was currently receiving psychiatric or psychological treatment to which the applicant responded no.  In the reasons for decision between [67 - 69]

    
    

    [CB 270 - 271] the Tribunal summarised the applicant’s submissions about his mental health and referred to the psychological assessments that had been provided by the applicant’s advisors.  At [CB 283]

    
    

    [94 -98] the Tribunal assessed the applicant’s credibility and gave some detailed consideration to his mental state.  I accept Mr Knowles’ submissions that in those circumstances it cannot be argued that the Tribunal failed to give proper, genuine and realistic consideration to the evidence of the applicant’s mental condition.  One would tend to agree with the views of the High Court in Minister for Immigration & Anor v SZJSS (2010) 243 CLR 164 that this type of claim can, and does invariably, end up as being no more than a request for impermissible merits review.

12. Insofar as the applicant’s particulars to the ground alleged that the Tribunal erred in making its own assessment of the applicant’s ability to participate in the hearing, this is something which is required of the Tribunal in order to satisfy itself that a proper hearing under s.425 is being provided. The Tribunal assessed the matter in some detail and came to a conclusion that the applicant was able to put his submissions and adduce evidence in support of this claims, which is what is required in these circumstances; Minister for Immigration & Anor v SZNPW (2010) 183 FCR 575 at [20 -22].

13. The second ground raised by the applicant was that the Tribunal was obliged to make inquiries as to his medical condition and how those conditions affected his visa application. This is quite simply an incorrect understanding of the law. There is no such obligation to require a medical examination under s.427(1)(d) of the Act; Minister for Immigration & Anor v SZGUR (2011) 241 CLR 594.

14. The third ground nominated by the applicant was that the Tribunal failed to identify and assess the applicant’s claim that he feared persecution from authorities as a young Tamil male who was imputed to be a supporter of groups opposed to the government.  That claim was expressly considered and rejected by the Tribunal between [CB 284 - 285] at [101-104]. 

15. The fourth ground was that the Tribunal erred by misconstruing the term “a well-founded fear of persecution”.  The applicant explained this by indicating that as the Tribunal had concluded that he was a member of a particular social group he must have, by definition, the necessary well founded fear.  This is simply not the case.  The Tribunal’s duty is to find whether or not a person is a member of a particular social group and then consider whether or not he has the requisite well founded fear.  In this case the Tribunal did that and concluded that he did not. 

16. The fifth ground related to an alleged failure by the Tribunal to consider relocation if the applicant was to return to Sri Lanka.  The Tribunal had no need to consider relocation, although the applicant had said that it was not something that could be applied to him because of the fact that he would be found wherever he was.  The Tribunal concluded that the applicant did not have a well founded fear of persecution should he return to the country at all, and therefore, relocation was irrelevant.  There was some suggestion made by the applicant that the Tribunal did not consider the question of whether there was adequate state protection.  Again, the Tribunal was not required to do this if there was no fear found.

17. The only matter that the Court believes could have been of some concern was the manner in which the Tribunal dealt with the complementary protection claim. This was considered by Mr Knowles in his helpful written submissions and in his oral submission to the Court. In short, what Mr Knowles argues is that whilst the one paragraph dealing with those claims is an abbreviated method of dealing with the matter it does not constitute a jurisdictional error by virtue of a lack of consideration of the distinction between significant harm and real harm contained in ss.36(2)(a) and 36(2)(aa). The reason for this is that the only claims that were put forward by the applicant were the claims that he made for convention related persecution. Mr Knowles notes that in a lengthy submission made by the applicant’s advisors to the Tribunal post-hearing it deals with complementary protection at [CB 193 - 195]. Whilst the submissions made in those pages deal in some detail with what the legal position in respect of complementary protection is, making reference to the Department’s complementary protection guidelines and Article 3(2) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, it in no way sets out any details of the alleged fear that the applicant is said to have independent of his fears arising out of his convention related grounds. At [115] of the submission [CB 195] the advisors say:

    “[115]The applicant’s subjective fear of harm in Sri Lanka is corroborated by the country information outlined above which indicates there are substantial grounds for believing there is a real risk he would face serious harm if removed from Australia.”

    But the independent country information is generic information concerning the position of Tamils, a social group of which the applicant is accepted to have been a member.

18. At [CB 197] the advisors say:

    “[123]In the present case, the country information and experiences of the Applicant in Sri Lanka - as outlined above - supports a finding that the mistreatment or harm, which the applicant would face, in the event he is removed from Australia, would amount to torture, cruel of inhuman treatment or punishment and degrading treatment or punishment.”

    This confines the claims made by the applicant to those already made in connection with his convention claims. 

19. In all these circumstances it appears to the Court that, whilst the Tribunal could have been more detailed in its response to the complementary protection claim, it did not conflate the two definitions and it considered all those matters put by the applicant, through his advisors, as constituting a claim for complementary protection under s.36(2)(aa).

20. It follows from the above that I am unable to provide the applicant with the review he seeks.  He appeared before me in Court today but his representations were mostly confined to his difficulty in comprehending that the Tribunal had not believed him and his assertions that everything that he had told the Tribunal was true.  The Court explained to the applicant that it was unable to provide him with a merits review of the Tribunal’s decision and was confined to finding errors of law.  I dismiss the application and order that the Applicant pay the First Respondent’s costs assessed in the sum of $4,700.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  16 December 2013