SZSVP v Minister for Immigration

[2013] FCCA 2354

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSVP v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2354

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – no arguable case for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 425, 476.

Federal Circuit Court Rules 2001 (Cth) rr.44.12.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259;
Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58

Applicant: SZSVP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1018 of 2013

Judgment of: Judge Nicholls

Hearing date: 22 November 2013

Date of Last Submission: 22 November 2013

Delivered at: Sydney

Delivered on: 22 November 2013

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Ms K Hooper

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The title of the first respondent is amended to read “Minister for Immigration and Border Protection”.

2. The application made on 13 May 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs set in the amount of $2,500.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1018 of 2013

SZSVP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me an application made on 13 May 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 1 May 2013, which affirmed the decision of the delegate of the first respondent Minister to refuse a protection visa to the applicant.

Background

1. In these proceedings, the Minister has filed a bundle of relevant documents, the Court Book (“CB”), from which the following can be ascertained.

2. The applicant is a citizen of Sri Lanka (CB 15). He arrived in Australia without a visa, and was described by immigration authorities as an “Offshore Entry Person” (CB 16).

3. In any event, he was permitted to apply for a protection visa, and he did so on 30 June 2012 (CB 2, CB 3 to CB 68). In this application, he was assisted by a firm of solicitors and migration agents.

4. The applicant’s claims to protection are as follows (see CB 173.5 to CB 173.7):

   (1)He feared harm if he were to return to Sri Lanka because of his Tamil ethnicity;

   (2)He feared harm because of what can be described as real, or imputed, political opinion. This “political opinion” was described as anti-government, The applicant claimed that he would thereby be suspected of some affiliation with the LTTE because of his brother, whom the applicant claimed had been taken away by the LTTE;

   (3)In relation to the criterion of complimentary protection, the applicant feared arrest and that he would be subject to significant harm if he were to be detained on return to Sri Lanka.

5. The applicant made a number of specific factual claims.  These included that his brother had been abducted by the LTTE, and that he, the applicant, had been beaten and subsequently hospitalised because he was suspected of being an LTTE member.

The Tribunal

1. The Tribunal’s findings were directed to the issues that arose from the applicant’s claims. In relation to imputed political opinion, the Tribunal expressed concerns about the applicant’s credibility in relation to having been abducted by people in a “white van” and interrogated and beaten in the belief that he was an LTTE member ([14] at CB 179). The Tribunal explained its difficulties with the applicant’s evidence, but ultimately gave the applicant the benefit of the doubt, and accepted that he had been abducted, beaten and then released, as the applicant had claimed ([14] at CB 180).

2. However, the Tribunal then reasoned, relying on the applicant’s own evidence, that these events had occurred because of a mistake concerning the applicant’s identity, and that this mistake had been quickly rectified ([15] at CB 180). That is, that the applicant was mistaken for his brother.  The Tribunal reasoned that, had those who had abducted the applicant continued to believe that he was his brother, he would not have been released as quickly as he was.

3. The Tribunal found that there was nothing before it to indicate that this event had ever been repeated, or that he was ever again confused with his missing brother. Nor, in the Tribunal’s view, was there anything to indicate that the brother’s abduction by the LTTE, on its own, would have led the authorities to identify the applicant and his family as being supporters of the LTTE. The Tribunal did not accept that the applicant had been imputed with a pro-LTTE political opinion because of his membership of his brother’s family ([16] at CB 180).

4. The Tribunal also considered, under the heading of “Imputed political opinion”, a subsequent claim by the applicant that he had been imputed with political opinion because he refused to participate in a pro-government demonstration organised by the Sri Lankan government to counter a report by the United Nations on the situation in Sri Lanka ([17] at CB 180).

5. The Tribunal again expressed doubts as to the credibility of the applicant’s claim, and set out its concerns about the applicant’s account of how he and his family had been approached in this regard. It ultimately found that it was unable to be satisfied that the claimed approach to the applicant to attend a demonstration, and associated claims had occurred ([18] at CB 180).

6. The Tribunal therefore, accepted that for some hours the applicant had been abducted in either 2007 or 2008 and interrogated by unknown persons. However, it also found that he had never been imputed with political opinion in favour of the LTTE, or against the Sri Lankan government, and, therefore, found that it could not be satisfied that the applicant would be harmed for such reasons if he were to return to Sri Lanka ([18] at CB 180 to [19] at CB 181).

7. The Tribunal also looked at the claim made by the applicant in relation to his Tamil ethnicity. In essence, the Tribunal accepted that there was country information which indicated that up to the end of the civil war in Sri Lanka in May 2009 Tamils in Sri Lanka were at risk of persecutory harm at the hands of the authorities, because of their Tamil ethnicity. The Tribunal noted that this was particularly so in northern and eastern provinces of Sri Lanka ([21] at CB 181).

8. However, the Tribunal also reasoned that, nearly four years after the defeat of the LTTE, the country information indicated that with the end of the fighting, the security situation in Sri Lanka had stabilised, and that risks posed to people who are Tamils, simply because they are Tamils, had been substantially reduced ([22] at CB 181).

9. The Tribunal, in particular, noted that its view had been adopted in a 2010 document published by the United Nations High Commissioner for Refugees. The Tribunal also had regard to the most recent version of that document, published in December 2012 ([22] at CB 181).

10. The Tribunal dealt with the applicant’s claims to have suffered some discriminatory harm at the hands of the Sri Lankan army, particularly between 2004 and 2008. The Tribunal accepted that the applicant might well have been subjected to some degree of scrutiny, or checking, by the Sri Lankan army at that time. However, having considered the applicant’s evidence, the Tribunal was not satisfied that the checking had been to the degree, or frequency, to which the applicant had claimed ([23] and [24] at CB 181).

11. The Tribunal noted the applicant’s personal circumstances during this period and found that it could not accept that he had suffered “serious” or “significant” harm simply because of his Tamil ethnicity ([26] at CB 182).

12. The Tribunal also considered the applicant’s claims under the heading of “Particular social group”, and identified such a possible group as being “failed asylum seekers” who returned to Sri Lanka. The Tribunal accepted that such a group can be said to exist in Sri Lanka as a particular social group ([27] at CB 182).

13. The Tribunal also had regard to relevant country information. According to the Tribunal, that country information indicated that some abuses had occurred against failed asylum seekers who had returned to Sri Lanka, that these abuses, on occasion, included torture, and that such abuses were of recent occurrence. However, Tribunal also noted from that country information, that these cases of abuse overwhelmingly involved people who either had some form of connection with the LTTE, or were suspected of such allegiances, or who were criminal suspects.

14. The Tribunal found, with reference to its earlier findings, that the applicant was not such a person. Further, the Tribunal found that when the country information was considered in light of its findings about the applicant’s personal circumstances, it could not be satisfied that the applicant would suffer harm on return to Sri Lanka because he had unsuccessfully sought a protection visa in Australia, or specifically, in terms of the Refugees Convention, because of his membership of a particular social group, consisting of failed asylum seekers who returned to Sri Lanka ([28] at CB 182 to [29] at CB 183).

15. The Tribunal also addressed the issue of the applicant’s membership of a particular social group, consisting of those who have left Sri Lanka in breach of the country’s immigration laws.  In its decision record, the Tribunal set out various country information in this regard (see [31] at CB 183).

16. Ultimately, the Tribunal concluded, having regard to that country information, that it could not be satisfied (at [34] at CB 183 to CB 184):

    “that the treatment afforded returnees for leaving Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, can reasonably be seen as constituting serious harm amounting to persecution. It follows that I am not satisfied that the Applicant would suffer persecutory harm for such a reason if he were to return to Sri Lanka.”

17. The Tribunal found the applicant did not meet the requirement to be recognised as a refugee due to his membership of a particular social group.

18. Under the heading “Complementary protection” the Tribunal dealt with the criterion set out in s.36(2)(aa) of the Act ([37] to [39] at CB 184). At [38] (at CB 184) the Tribunal stated that:

    “…While I accept that he would likely face arrest on charges of leaving the country illegally, that he could well be placed in remand for a relatively brief period while awaiting a bail hearing, and that he might later be fined I am not satisfied that this would involve treatment that could reasonably be said to amount to either serious harm in a Convention sense, or significant harm in terms of the provisions of Australia’s complementary protection arrangements.  Nor am I satisfied he would be exposed to harm amounting to significant harm for any other reason.”

Before the Court

1. The application to the Court contains one ground, as follows:

   “That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.”

2. The first Court date in this matter was on 29 May 2013. The applicant appeared in person, and was assisted by an interpreter in the Tamil language. At that time, I sought to put the applicant on notice as to the role and power of the Court in relation to his application. In essence, the applicant that the Court could not review the merits of the Tribunal’s decision. I also put to the applicant that, to have any prospect of success before the Court, he would need to identify some legal error on the part of the Tribunal, and that would greatly assist his case if some legal argument could be discerned.

3. The applicant was referred to a lawyer to obtain advice about the nature of the application that he had made, and what he would need to put to the Court. At that time, the applicant was put on notice that if he had nothing further to put before the Court when he next appeared before the Court, that his case may “end” at that future time.

4. The matter was set down for mention on 22 November 2013. The applicant appeared in person and was assisted by an interpreter in the Tamil language. Ms K Hooper appeared for the Minister. Nothing further has been filed by the applicant in these proceedings, in circumstances where the applicant confirmed to the Court that he had spoken to a lawyer.

5. The Minister sought that the Court proceed immediately to a “show cause” hearing, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). I agreed with the Minister’s representative that such a course of action was appropriate.

6. The issue for the Court, therefore, is whether the application made by the applicant raises any arguable case for the relief that the applicant seeks. I note that the relief that is expressed in the application to the Court is that the matter be returned to the Tribunal for reconsideration.  However, I also note that the application seeks relief by way of declaration and injunction, rather than relief in the nature of any of the prerogative writs. Nonetheless, I understood that what the applicant was really seeking was relief in the nature of returning his case to the Tribunal for reconsideration.

Consideration

1. When the applicant was asked to explain to the Court his assertion that the Tribunal’s decision was affected by legal error, the applicant stated that the Tribunal did not believe what he had put to it.

2. The Tribunal plainly had doubts about the applicant’s credibility. However, it is important to note that, in certain respects, the Tribunal gave the applicant the benefit of the doubt. In other respects, the Tribunal did not believe, or did not accept, what the applicant had said.

3. In the circumstances the applicant’s complaint can only be seen as a request for this Court to engage in impermissible merits review.  (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.) As I sought to explain to the applicant at the first Court date, the Court’s role in matters of this type is limited to questions of law. Simply, the Tribunal does not have to believe anything that an applicant puts to it. (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437)

4. There is no legal error by the Tribunal where, as in this case, it makes findings, including findings on credibility, where those findings are reasonably open to it to make on what is before it. The Tribunal gave cogent reasons for its disbelief of the applicant’s evidence.

5. The applicant also said that the Tribunal asked him for documents to substantiate his claims and that, if he had known these documents would be required, he would have kept documents to give to the Tribunal. Before the Court, the applicant was unable to say what legal error was involved in that regard. There is nothing before the Court to support the assertion that the Tribunal made any such specific request of the applicant, other than the general reference to documents or written arguments referred to in the Tribunal’s letter, dated 10 October 2012, to the applicant inviting him to the hearing (CB 123).

6. Even if there had been some request of that nature, I can only agree with the Minister’s submissions today, that the request, on its own, would not disclose any jurisdictional error on the part of the Tribunal.

7. I should note in this regard, lest it be said that there is some implicit complaint by the applicant that he was denied any opportunity by the Tribunal to put documents to it, that the applicant was represented before the Tribunal by a firm of lawyers and migration agents. The process before the Tribunal, the relevance of any documents to the Tribunal’s consideration and its conduct of the review, could have been explained to the applicant by those representatives. I also note that the applicant’s representatives made substantial and detailed submissions, on the applicant’s behalf to the Tribunal (CB 135 to CB 163). In any event, the applicant has not identified what these documents could have been.

8. I have considered the material before the Court. I cannot see that any arguable case is apparent on what has been put before the Court. The applicant was represented before the Tribunal. He was invited to a hearing, pursuant to s.425 of the Act. Bearing in mind what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, in relation to the Tribunal’s procedural fairness obligations, I cannot see that any arguable legal error arises, let alone occurred.

9. The applicant has not put a transcript of the Tribunal hearing before the Court. Therefore the Tribunal’s account of the hearing remains unchallenged. Based on the Tribunal’s account of the hearing, it is quite clear that the issues in the review were discussed with the applicant at the hearing, and the applicant was given the opportunity to address those issues.

10. The Tribunal’s findings of fact, including findings on credibility, are such that no assistance can be rendered to the applicant today. In my view there is no breach of any statutory obligation by the Tribunal in this case.

11. I note, in particular, given the final complaint made by the applicant before the Court today in relation to the Tribunal’s assessment under the complementary protection criterion, that the applicant took the Court to [38] (at CB 184) of the Tribunal’s decision record and complained that the Tribunal accepted that he would likely face arrest on charges of leaving the country illegally or, as the applicant told the Court, accepted that he would have problems when he returned to Sri Lanka. Notwithstanding this, the Tribunal still found that he could return to Sri Lanka.

12. At best for the applicant, it could be said that this may be some attempt to argue that there was some illogicality in the Tribunal’s reasoning.  I note here what was relevantly said by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, per Crennan and Bell JJ, and per Heydon J and what was also relevantly said by the Full Federal Court in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58, per Rares and McKerracher JJ.

13. For the applicant to have the advantage of being able to say that an arguable legal case is raised, there would need to be something that showed that there was illogicality in the decision as a whole, and not in any antecedent finding.

14. Even if regard were to be had only, and simply, to the matter addressed at [38] (at CB 184) of the Tribunal’s decision record, I cannot see that any illogicality, or for that matter, irrationality, arises in the Tribunal’s analysis.

15. Earlier in its decision record, the Tribunal had set out the relevant law, to which it was required to have regard. At [6] (at CB 184) the Tribunal made specific reference to s.36(2)(aa) of the Act, and properly described it as the complementary protection criterion.

16. The complementary protection criterion is informed by the definition of “significant harm”, that appears in s.36(2A) of the Act, and the further definition of some of the terms set out in s.36(2A), which are set out in s.5 of the Act.

17. The Tribunal’s relevant reasoning at [38] (at CB 172) is plainly as follows.

    a)The Tribunal accepted the likelihood that the applicant would face arrest on charges of leaving the country illegally, given that there was no dispute that that is how he had, in fact, left Sri Lanka;

    b)The Tribunal found that the applicant could well be placed in remand. This would be for a relatively brief period while awaiting a bail hearing; and

    c)The Tribunal even accepted that he might later be “fined”.

1. However, in context, and looking at the Tribunal’s reasoning in a holistic way, it is clear that the Tribunal reasoned that, even if all of these events were to occur to the applicant, they did not rise to come within the definition of “significant harm”, as that term was understood and defined in the Act. The Tribunal’s reference to “significant harm” in terms of the provision of Australia’s complementary protection arrangements makes that tolerably clear.

Conclusion

1. In all, therefore, there is no arguable case for the relief that the applicant seeks. It is appropriate that the application be dismissed, pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 January 2014