SZSSC v Minister for Immigration
[2014] FCCA 728
•1 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSSC v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 728 |
| Catchwords: MIGRATION – Review of decision of RRT – Young Tamil male – observations on request for recommendation he be found a third country to settle in. |
| Legislation: Migration Regulations 1994, Reg. 866.222 |
| Applicant: | SZSSC |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 616 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 1 April 2014 |
| Date of Last Submission: | 1 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,000.00.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 616 of 2013
| SZSSC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant, who is a young male from Sri Lanka, arrived in the Australian migration zone by boat some time on or before May 2012. On 17 September 2012 he applied for a protection (Class XA) visa under s.65 of the Migration Act 1958, (Cth)[1]. On 9 November 2012 a delegate of the Minister refused to grant the protection visa and the applicant applied for review of that decision from the Refugee Review Tribunal. He attended a hearing before the Tribunal and responded to questions put to him. On 26 February 2013 the Tribunal determined to affirm the decision under review.
[1] “Act”
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations arose out of his being a younger Tamil from the north of Sri Lanka who had been imputed with a political opinion in favour of the LTTE following an incident involving a bomb blast in the village in which he lived in September 2006. He claimed that following that incident, a police officer, whose name he was unable to give until after the completion of the Tribunal process, had first warned him to keep away from the investigations and then proceeded to extort a very large sum of money from him and his family. It was when the money ran out that the applicant felt it was unsafe for him to remain in Sri Lanka and so boarded a boat for Australia.
There are associated with these claims what have previously been described in this Court as generic claims, common to many persons such as this applicant, of imputed political opinion of association with or support for the LTTE which would result, should the applicant be returned, to imprisonment and persecution. There are claims that the applicant will be persecuted because he has left Sri Lanka and made an application for asylum in a third country. And there are claims that should he return he will be perceived as a rich person for having spent some time in a third country and will be the subject of further extortion.
These matters were raised with the Tribunal and discussed. The Tribunal put to the applicant some independent country information that it had about the risks to young Tamils and particularly, to those returning. It put to the applicant questions concerning the alleged extortion and closely questioned him about the actions of this unnamed police officer. The Tribunal also considered the submissions made after the hearing by the applicant through his migration agent, which served to confirm the applicant’s story about the bomb blast in his village and also attempted to provide a name for the police officer. The Tribunal took into consideration the submissions made on the applicant’s behalf by his migration agent.
At [65-66] [CB 263-264] the Tribunal helpfully paraphrases the applicant’s claims and notes its acceptance that he had been held by the authorities for one hour, that there was a bomb blast in 2006 and that he assisted persons who were injured. The Tribunal accepted that the applicant anticipated harm in Sri Lanka for being a Tamil and a failed asylum seeker but did not accept as credible his claim that he was subjected to extortion by an officer of the CID in Sri Lanka. There follows the Tribunal’s reasons for coming to these conclusions and they are set out in some considerable detail between [69] and [80]
[CB 264 to 268] of the Tribunal’s decision record. The Tribunal considered the applicant’s claims both individually and cumulatively. At [81 - 86] [CB 268 - 269] the Tribunal considered in some detail the applicant’s claims for complementary protection.
On 26 March 2013 the applicant applied to this Court for judicial review of the Tribunal decision. The application form contained five grounds. On 2 December 2013 the applicant filed an Amended Application. This contained only one ground. But in a document entitled Written Submissions it is clear that the applicant wished all his grounds to be considered by the Court. These were addressed by Ms Dejean in her helpful written submissions and the Court will follow her example by dealing with each of the grounds in turn. The first ground was:
“1.The Tribunal fell into jurisdictional error by failing to take into account the section 422B of the Migration Act 1985, (Exhaustive statement of nature justice hearing rule).
Particulars
a.The applicant was not provided an opportunity to comment on the external sources the Tribunal had on processing measures which may be undertaken by authorities in Sri Lanka on failed Tamil asylum seekers. The Tribunal did not act in a way that is fair and just.
b.The applicant was not provided opportunity to address the issue at the hearing nor at any point prior to making of adverse finding. This is in relation to the Home Office Report, Sri Lanka Policy Bulletin 1/2012 and the DFAT report 1446.”
There are two problems with this ground. The first is that it is quite clear from the decision record that the Tribunal did discuss with the applicant the independent country information upon which it relied.
“[48] The applicant claimed that all Tamils in Sri Lanka are being subjected to circumstances amounting to persecution by the Sinhalese authorities.
[49] The Tribunal referred to information from external sources and commented that the information indicated that it is only certain groups of persons who are still at risk of harm in Sri Lanka…” [CB 259]
These references to independent country information are continued at [50] to [52] inclusive of the decision record. Thus the ground of application is not factually correct. The second problem is that even if it was factually correct there is no obligation upon the Tribunal to discuss independent country information that does not directly affect the applicant with him; s.424(3)(a) of the Act. For these reasons ground 1 must fail.
Grounds 2 and 3 are in the following forms:
“2The Tribunal committed a jurisdictional error of law by failing to consider whether relocation was reasonable or practicable if the Applicant were to return to Sri Lanka.
Particulars
a.The Tribunal failed to deal with the manner in relation to relocation as stated in Plaintiff M13-2011 v Minister for Immigration and Citizenship [2011] HCA 23.
b.The applicant cannot escape harm by relocation. The harm he fears in Sri Lanka is from high ranking Sri Lanka police personnel and the authorities. The applicant has been hiding prior to his departure to Australia. As a Tamil he has to register his name with the authorities and the policeman will be able to have access to the whereabouts of the applicant.
3.The Tribunal fell into jurisdictional error when it failed to consider the issue of availability of adequate state protection to the Applicant in its finding.
Particulars
a.The applicant claims fear harm in Sri Lanka on the Convention grounds of his Tamil race, his imputed political opinion and his membership of the particular social group consisting of failed asylum seekers.
b.The applicant had informed the Tribunal that the said police officer had been to his parent’s house since he left to Australia asking for the whereabouts of the applicant.
c.The applicant also had informed the Tribunal that he ‘may not be harmed at the airport but later, when he returned home, the authorities would see to harm him.
d.The said police officer had threatened to kill the applicant if he refuses to continue to pay him the extortion sum.”
The obligation to consider relocation or the availability of adequate state protection are obligations that arise for a decision maker only if the decision maker concludes that the applicant is a person who has a well founded fear of persecution on the evidence before it. In the case of relocation the persecution the applicant feels must be convention related. In the case of adequate state protection, whilst the persecution need not be convention related, the ground for refusing state protection must be. In this particular case the Tribunal did not come to a conclusion that the applicant would suffer persecution either now or in the foreseeable future should he return to Sri Lanka. The persecution the applicant was required to suffer will be persecution as defined under s.91R(1) of the Act involving serious harm which is defined in that Act. Once the Tribunal came to that conclusion there was no necessity for it to consider relocation or adequate state protection. And in those circumstances these grounds must also fail.
The fourth ground is in the following form:
“4.The Tribunal committed jurisdictional error by failing to give proper, genuine and realistic consideration to evidence before it in relation to the Applicant’s mental health issues.
Particulars
a.The Tribunal gave no weight to the psychologist’s assessment provided by applicant that he was suffering from generalised anxiety disorder which was exacerbated by the uncertainty of his future. The Tribunal made its decision on the basis that ‘that the psychologist did not indicate that the applicant’s condition prevented him from providing information or discussing his claims.’
b.The Tribunal failed to get further information which it considered relevant to this case from the psychologist under section 424 of the Migration Act 1958 (Tribunal may seek information). Instead it decided to form its own view on the issue of mental health without any medical evidence.
c.Failure on the part of the Tribunal to consider exercising power under s427(1)(d) of the Migration Act 1958 (Cth). Although this power is discretionary in nature but it is important in providing a mechanism of review that is fair, just, economical, informal and quick according to substantial justice and merits of this case.”
It is correct that the applicant submitted to the Tribunal an independent report from the psychologist. That report is found at [CB 205]. In short it is in the following form:
“Dear Sir/Madam,
Mr Applicant has begun counselling in order to process the trauma and other related issues he had experienced while living in Sri Lanka. At present he appears to be suffering from generalised anxiety disorder. His current symptoms are being exacerbated by the uncertainty of his future, specifically in regards to whether he will continue to remain in Australia. Mr Applicant’s symptoms will deteriorate in situations he perceives as stressful.
Please do not hesitate to contact me with any further queries.”
It will be seen that there is no indication in that document that the applicant was unfit to attend a hearing before the Tribunal or to put his case properly. The Tribunal considered the report and at [63] dealt with it in the following manner:
“The applicant has provided a psychologist’s assessment which indicates that he was suffering from a “generalised anxiety disorder” which was exacerbated by the “uncertainty of his future”. The psychologist did not indicate that the applicant’s condition prevented him from providing information or discussing his claims. The Tribunal is not satisfied that the applicant psychological condition prevented him from discussing claims or presenting information at the hearing.”
What is required of a Tribunal in these circumstances is to consider any evidence of the type brought before it concerning an applicant’s medical condition and to make its own determination as to whether it believes the applicant is fit to undertake the hearing so that there can be no breach of s.425 of the Act. The Tribunal has considerable discretion in these matters and it would only be in the most extreme case where it is quite clear that that discretion miscarried that a court would interfere. This is not such a case.
The fifth ground in the original application is in the following form:
“5The Tribunal committed jurisdictional error by applying an incorrect test in finding that the Applicant’s fear of persecution was not well-founded.
Particulars
a.The Tribunal accepts that the applicant is a young Tamil from Udappu in Sri Lanka.
b.The Tribunal accepts that the applicant was held by the authorities in the past during the civil war.
c.The Tribunal further accepts that in September 2006 there was a bomb blast near applicant home and he assisted persons injured in the blast.
d.The Tribunal accepts that the applicant will be detained and questioned when he returns to Sri Lanka.
e.The Tribunal accepts that he was detailed in general round up by the authorities and held in detention for one hour.
f.However, the Tribunal finds that the applicant has not been involved in political activities or any other activities which will attract the adverse interest of the authorities or paramilitaries or the Sinhalese community in Sri Lanka. The Tribunal failed to take into consideration by being young Tamil, the authorities will link the applicant with the LTTE. In the past he was kidnapped and beaten by police. The Tribunal must consider whether the profile of young Tamil male who had been subjected to persecution, long-term extortion by a police officer, the imputed political opinion, and as a failed asylum seeker was likely to face persecution in the future.”
It will be immediately seen from the manner in which this ground is articulated that it is really only a request for impermissible merits review from the Court. It argues with the conclusions that the Tribunal has made following upon those items of his evidence which it accepted. To the extent that it indicates that the Tribunal may not have considered parts of the applicant’s claim that is factually incorrect. There is no basis for this ground to succeed.
The final ground in the original application is in the following form:
“6.The Tribunal committed jurisdictional error by failing to consider whether the extortion claims subjected by the Applicant for several years, in context of the Applicant’s particular social group (i.e. a young Tamil who has imputed political opinion) and the political situation in Sri Lanka, have the characteristics of individual targeting motivated by Convention reasons.
Particulars
a.The Tribunal restricted its finding very heavily on the UNHCR eligibility guidelines for assessing the International protection needs of asylum seekers from Sri Lanka [2012] on narrow issue whether the applicant fell under the group of high risk groups.”
The difficulty the applicant faces in establishing this ground is that the Tribunal came to the conclusion on the basis of credibility that the extortion claims did not take place and thus it could not fall into jurisdictional error in the manner suggested. Credibility is a matter for the Tribunal par excellence. The Court cannot interfere with determinations of that type where they are made upon available evidence, as was done here.
The ground found in the Amended Application was in the following form:
“1.The RRT did not consider my potential right to complementary protection although it has accepted the risks faced by young Tamils returning to Sri Lanka as failed asylum seekers that would face a real risk of significant harm. The RRT has accepted that I would be questioned and detained upon my return but it did not apply the correct test required by section 36(2)(aa).”
Once again, the applicant has made an allegation which is not borne out by the facts. As noted already in these reasons the Tribunal considered the applicant’s claim for complementary protection between [81] and [86] [CB 268-269]. It particularly considered the harm that it accepted the applicant might suffer as a returned asylum seeker. It concluded that this did not constitute significant harm for the purposes of the Act. In coming to this conclusion it made reference at [83] to independent country information it accepted. The Tribunal’s decision on this aspect of the matter cannot be impugned.
The applicant appeared before me today. He told that the RRT failed to consider what would happen to him as a Tamil from Sri Lanka. He told me that the Tribunal had accepted that if he was returned he would be detained and imprisoned until he was released on bail. And he submitted that the Tribunal failed to consider the grant of a protection visa on the grounds that he would be detained and imprisoned until he was released. He asked me to adjourn the matter pending a decision of the High Court. On the failing of all of these he asked the Court to recommend to the Department that he be referred to a third country who might accept him as a refugee should this application fail.
The Tribunal did not fail to consider what would happen to the applicant upon his return to Sri Lanka. This was considered in considerable detail under both convention and complementary protection criteria. The Tribunal’s conclusions upon this have already been referred to as being based upon independent country information, which the Tribunal was entitled to accept.
The court is not aware of any decision of the High Court that might have a direct bearing on this case. It is true that prior 28 March it had been agreed that this court case could be adjourned pending a hearing in the High Court, concerning the legality of Regulation 866.222 of the Migration Regulations 1994. However, on 29 March 2014 that Regulation was disallowed in the Senate and therefore the High Court hearing became otiose. The applicant may not have been clear about this but I think it is reasonable to assume that the High Court decision he refers to is the one here considered.
Finally, whilst this Court has many powers and even more discretions it does not believe that it is appropriate to make the sort of recommendation that the applicant here asks for. There is nothing in the applicant’s case that distinguishes it from many others involving young Sri Lankan Tamils and whilst the court may well have sympathy for their plight, any decisions as to their future should be made by the executive and not by the judicial arm of government.
The application must be dismissed. The applicant shall pay the first respondent’s costs which are assessed in the sum of $6,000.00.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 10 April 2014
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