SZSUE v Minister for Immigration & Border Protection

[2013] FCCA 2133

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 2133

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all the claims made by the applicant – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474,
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) (2004) 144 FCR 1
S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZSUE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 883 of 2013

Judgment of: Judge Emmett

Hearing date: 10 December 2013

Date of Last Submission: 10 December 2013

Delivered at: Sydney

Delivered on: 10 December 2013

REPRESENTATION

Counsel for the Applicant: Mr Leonard Karp

Solicitors for the Applicant: Rasan Selliah & Associates

Counsel for the Respondents: Ms Rachel Francois

Solicitors for the Respondents: Minter Ellison Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 883 of 2013

SZSUE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 28 March 2013 and handed down on 28 March 2013 (“the RRT”).

2. The applicant claims to be a citizen of Sri Lanka and Tamil ethnicity, and to fear harm from various groups in Sri Lanka.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of the delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. On 18 May 2012, the applicant arrived in Australia by boat as an Irregular Maritime Arrival having departed illegally from Sri Lanka on a passport issued in his own name.

2. On 25 August 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship under the Act (“the Department”).

3. On 26 October 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 31 October 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 28 March 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 29 April 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. Upon his illegal arrival in Australia by boat, the applicant was interviewed. In relation to the bar incident, the applicant stated that he commenced work at the bar on 8 September 2011. The applicant stated that there were many problems in the bar so police came and told them that they could not open bottles and drink on the premises. Rather, they could only sell bottles for customers to drink at home. The applicant stated that on 18 March 2012, two men came to the bar and bought two beers, opened them and started drinking. The applicant said that he told them that the police had said that they could not drink in the bar. The men replied that if police came they would look after it and that the applicant should mind his own business.

2. The applicant stated that shortly thereafter, two police dressed in civilian clothes came into the bar looking for drunk people. The applicant told the officers about the two men drinking and the police just laughed and walked away

3. The applicant stated that after the police left, he was beaten by the two men. He called the police who arrived ten minutes later and took the two men away. The police told the applicant that they would come back to talk to him.

4. The applicant provided a statement in support of his protection visa application in which he stated the following:

   a)As a Tamil male, the applicant was repeatedly harassed by the army on suspicion of being an associate of the Liberation Tigers of Tamil Eelam, also known as the Tamil Tigers (“LTTE”).

   b)In 1997 during the Sri Lankan civil war between the LTTE and the Sri Lankan army, the applicant was arrested twice on the grounds that he had transported LTTE members, and his uncle was gaoled for four years for hiding bombs for the LTTE.

   c)Between 1998 and 2001, members of the Criminal Investigation Department of the Police (“CID”) came to the applicant’s house and questioned him.

   d)On 18 March 2012, the applicant was working at a bar with an off-licence retail facility. He reported two men who had purchased take-away beer who then drank the beer at the bar, an action prohibited by the police.

   e)The police attended to the applicant’s complaint however, when seeing the two men who were drinking, “just looked at them and left without further word.”

   f)The two men, upset about being reported, assaulted the applicant.

   g)The applicant called the police again. When (different) police officers arrived, one of the two men took a gun out and passed it to the other. The officers “took the two men away,” however before leaving the bar, one of the attackers said to the applicant, “We’ll come back and look after you.”

   h)After the incident, the applicant’s employer gave the applicant a lunch break. During the break the employer phoned and informed the applicant that men had come to the bar inquiring after him and the employer advised him not to come back to work that day.

   i)The applicant did not feel safe at the bar and decided to leave Sri Lanka.

   j)After the applicant left Sri Lanka, three plain clothed men from the CID came to his house twice and asked his wife as to his whereabouts.

   k)The applicant believes that if forced to return to Sri Lanka, he will be “abducted, tortured and killed” and believed that the two men only came to the bar to cause him difficulties. The applicant believes that the two men belonged to an armed paramilitary group, such as the ‘Karuna’ group.

   l)The applicant also fears that if he was to return to Sri Lanka, he will be arrested at the airport because he left the country illegally, and that if the CID researched him his past would cause him difficulties again.

   m)Given his previous encounters with the army, the applicant believes that it will be assumed that he has an association with the LTTE and will face further harm. The applicant stated that the authorities could not protect him and were powerless against the armed groups.

The Delegate’s decision

1. On 3 September 2012, the applicant attended an interview with the Delegate.

2. On 26 October 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The RRT’s review and decision

1. On 31 October 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 4 December 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 12 February 2013 to give oral evidence and present arguments.

3. On 12 February 2012, the applicant attended the RRT hearing and gave evidence.

4. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

5. The RRT explored with the applicant his claims and put to him concerns it had about his evidence, noting his responses. In particular, the RRT found a number of discrepancies between the applicant’s written and oral claims.

6. The RRT accepted that the applicant is of Tamil ethnicity but rejected the applicant’s claim to have experienced serious harm by reason of his ethnicity or his religion.

7. The RRT found that the applicant’s written claims to have been repeatedly harassed by the army on suspicion of being a LTTE member and to have been arrested twice for this reason, were unsupported by the oral evidence. The RRT found that the applicant had not been harassed or arrested as claimed.

8. The RRT found that the incident at the bar on 18 March 2012, was no more than a “run in” or a “one off.”

9. The RRT found that the applicant’s claim that the two men were members of the Karuna group as mere assertions without any evidence to support such an assertion.

10. Further the RRT found that the men were not politically motivated to harm the applicant, nor would they be “motivated to harm him on his return to Sri Lanka.”

11. The RRT accepted independent country information which indicated that coming from a particular region or ethnicity does not of itself, without significant profile, give rise to a well-founded fear of harm on return to Sri Lanka.

12. The RRT accepted that given the applicant had departed Sri Lanka illegally by boat, it was possible that the applicant would face questioning, surveillance and possibly detention by Sri Lankan authorities. However, the RRT did not accept that such treatment, by reason of his illegal departure, would amount to serious harm.

13. Having considered the applicant’s claims, including his migration agent’s written submissions, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Sri Lanka, that the applicant did not have a well-founded fear of persecution in Sri Lanka and for this reason the applicant was not a person to whom Australia owed protection obligations.

14. The RRT also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that there was no credible evidence before it that the applicant would be harmed by Sri Lankan paramilitary groups due to his complaint made against two men who assaulted him in a bar where he worked.

15. In the circumstances, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Sri Lanka, there is a real risk that the applicants would suffer significant harm.

16. Accordingly, the RRT affirmed the decision not to grant the applicant a protection (Class XA) visa.

The proceeding before this Court

1. The applicant was represented before this Court today by Mr Leonard Karp, of counsel.

2. On 14 July 2013, the applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support by 9 August 2013.

3. At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court

4. On 25 November 2013, the applicant filed an amended application, containing the single ground:

   “1. The Tribunal committed jurisdictional error by failing to consider a claim or integer of a claim that arose either expressly or clearly on the information and evidence before it.

   Particulars

   (a) that the men who attacked the applicant at his employment at a bar in Valaichennai were members of the CID.”

5. Mr Karp contended that the RRT failed to consider a claim made by the applicant that the two men who attacked him in the bar on 18 March 2012 were members of the CID in Sri Lanka.

6. In support, Mr Karp referred to the applicant’s statement of the incident provided on his arrival in Australia where the applicant said “because I had issues in Sri Lanka, the CID just went and asked where am I.” The applicant also stated that the CID came to his home on 5 May 2012 and 7 May 2012 and asked his wife about the applicant’s whereabouts. The applicant was concerned that he would be caught and taken to gaol if he returned to Sri Lanka because of past problems. However, in answer to a question as to whether he had had problems with the CID previously, the applicant said “No.” When asked what else would happen to him, he answered “Nothing. That’s all.”

7. In his statement of claims, the applicant recounted the bar incident again. The applicant makes no mention that he suspected that the two men at the bar who had beaten him may be from the CID. He stated that he was “convinced that they belong to one of the armed paramilitary groups…such as the Karuna group.”

8. The applicant stated that he feared that he would be arrested at the airport if returned to Sri Lanka because he had left the country illegally and that if the CID did research on him, “all the old stories would come up and cause him difficulties again.” The applicant then stated that after he left three men from the CID came to his house asking for him on two occasions, two days apart.

9. The applicant stated that the CID had come to his house and questioned him regularly between 1998 and 2001 because one of his uncles was in prisoned for four years for hiding bombs in his house.

10. In considering the applicant’s claim that he would be harmed by the two men who had beaten him at the bar, the Delegate found the incident to be “an unplanned, unproved act of violence.” The Delegate stated as follows:

    “I have taken into consideration the concerns raised by the applicant’s representative in regard to the possibility that the two men could possibly be members of the CID or a paramilitary group such as the Karuna group as they appeared to be unfazed by the presence of the police to the extent that they waited with the applicant for the police to arrive. However, in the absence of any substantial evidence that the men are in fact members of the CID, a paramilitary group, or that they intend to harm the applicant again, I find that there is no real risk the applicant will face real harm by these two men if returned to Sri Lanka.”

11. The Delegate accepted that the applicant may be questioned by the CID upon his return in accordance with routine procedures affecting all returnees. The Delegate did not accept that the applicant would be subject to serious harm by the authorities for the reasons claimed.

12. On 8 February 2013, the applicant’s migration agent sent a submission to the RRT, in which, inter alia, the agent stated as follows:

    “In summary the reason the applicant fled Sri Lanka was because he feared being targeted, abducted, tortured and killed by members of the CID and government allied-paramilitaries because he reported on two men whom he believes are members of the Karuna group.” (emphasis added)

13. Clearly, the migration agent’s submission does not suggest that the applicant feared that the two men who attacked him at the bar were members of the CID. The migration agent’s submission clearly states that the applicant believed those two men to be members of the Karuna group. The migration agent’s submission asserts that the applicant feared harm from members of the CID and government allied-paramilitaries because he reported the two men who attacked him to the police. 

1. The RRT acknowledged the migration agent’s submission noting that he had suggested that the applicant fled Sri Lanka because he feared harm, inter alia, from the CID and government allied-paramilitary groups.

2. The RRT also stated that the applicant said that he believed the two men who attacked him at the bar were members of the Karuna group.

3. The is no mention in the transcript before the RRT, annexed to an affidavit read by the applicant, of any claim by the applicant that the two men who attacked him in the bar were members of the CID. Indeed, it was the applicant’s oral evidence that when he called the police, they arrived 10 or 15 minutes later and one of the two attackers took a gun from his waist belt and gave it to the other attacker, following which the police officers talked to them and took them away.

4. The RRT accepted that the applicant may have had the experiences he described whilst working as a bartender. However, the RRT did not accept that the two men who attacked him were members of the Karuna group or were politically motivated to harm him. The RRT noted that the applicant’s claim was a mere assertion without providing any grounds for the assertion. The RRT accepted that the applicant requested and received police intervention and found that the event was a “one-off.”

5. The RRT rejected the applicant’s claims about his uncle’s detention for hiding bombs and rejected the applicant’s claim to be under surveillance by the CID for some years afterwards. The RRT noted that the applicant did not raise this during the hearing on his own accord, but had to be reminded of it as one of his written claims. The RRT noted that the applicant did not refer to any flow-on effects to himself or his family beyond his claim to be under surveillance.

6. In the circumstances, other than the Delegate’s statement in its decision that the applicant’s representative raised the possibility that the two men who attacked the applicant at the bar could possibly be members of the CID,  there was no claim made by the applicant to that effect to the RRT. The Delegate clearly rejected the claim and it was not raised again by the applicant before the RRT.

7. The only claim relating to the CID maintained by the applicant before the RRT, was the submission made by the applicant’s migration agent that he feared harm from the CID and government allied-paramilitaries because he reported the two men who attacked him and whom he believed to members of the Karuna group. The RRT clearly rejected that claim in terms as stated above.

8. Having rejected the applicant’s claim to have been at risk of future harm arising from the bar incident, I accept the submission of counsel of the first respondent that there was no residual, substantial, clearly articulated claim relied on established facts which the RRT failed to consider (see: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) (2004) 144 FCR 1 at 22).

9. I accept that the RRT was required to consider a case that arose squarely on the material and evidence before it, although not expressly articulated (see: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) (2004) 144 FCR 1 at 18-19; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 247 and 259).

10. However, it is well accepted that a decision of the RRT must be considered in light of the basis upon which the application was made and not a different basis which may occur to an applicant or an applicant’s lawyers at some later stage (see: S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] per Gleeson CJ).

11. A fair reading of all the material before the RRT does not suggest that a claim arose before the RRT that the applicant feared harm from the two men who attacked him at the bar because they were members of the CID.

12. Otherwise, the RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J)

13. Accordingly, the ground of the amended application is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date: 10 December 2013