SZSVV v Minister for Immigration

[2015] FCCA 2516

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSVV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2516

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Represented applicant to be taken as not pressing available claims which were not expressly pressed – no duty to consider claim not made.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZTOK v Minister for Immigration & Border Protection [2015] FCA 929

Applicant: SZSVV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1065 of 2013

Judgment of: Judge Cameron

Hearing date: 31 August 2015

Date of Last Submission: 31 August 2015

Delivered at: Sydney

Delivered on: 18 September 2015

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitors for the Applicant: Success Lawyers & Barristers

Counsel for the First Respondent: Mr B.D. Kaplan

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1065 of 2013

SZSVV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived at Christmas Island by boat on 20 June 2012. On 2 November 2012 he lodged an application for a protection visa alleging that he feared persecution in Sri Lanka because of his ethnicity and his imputed political opinion. On 1 February 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. At his entry interview conducted on 14 September 2012, the applicant provided the following evidence:

   a)he departed Sri Lanka illegally in 2006 and went to India.  He remained there until 2008;

   b)he travelled to India again in 2010 for a pilgrimage;

   c)on 18 January 2012 he and his father were attacked on their fishing boat by Sinhalese people. His father’s hand was injured during the attack and did not function properly now;

   d)on 28 April 2012, while buying food for his sister, people wearing navy uniforms attempted to kidnap him.  He sustained some injuries but managed to escape.  He did not know why he had been targeted;

   e)after the attempted kidnapping, he went to live with his great aunt for a month; and

   f)the people in the navy uniforms had been responsible for about twenty other kidnappings and so his father decided to send him to Australia.

2. In a statutory declaration attached to his application for a protection visa, the applicant claimed that:

   a)he is a Tamil of Hindu faith;

   b)in August 2009 the Criminal Investigation Division (“CID”) came to his house and questioned “all of us” about why they had travelled to India and whether they had been involved with the Liberation Tigers of Tamil Eelam (“LTTE”).   The CID officers did not believe their reply that they did not have any association with the LTTE or with any other military organisation but left after taking their personal details;

   c)the CID searched his home in May 2010;

   d)after the attempted kidnapping, while he was staying with his aunt, the CID searched for him at his parents’ house;

   e)the authorities suspected him of being a supporter of the LTTE.  He feared that the police, the CID and the Sri Lankan army would arrest and kill him; and

   f)he also feared that the CID would harm him because he had left Sri Lanka illegally. 

3. At the departmental interview, the applicant further claimed that:

   a)he had completed trade courses in welding and motor mechanics but had not worked in either of these fields.  Instead, he worked as a fisherman with his father;

   b)he and his family fled to India in 2006 during the Sri Lankan war.  After their return in 2008, the CID came to his family’s home and questioned them about why they had gone to India and whether they had been involved with the LTTE.  The CID implied that the applicant had been involved with the LTTE;

   c)whilst living at his aunt’s home, the CID came to his parents’ house about two or three times in search of him; and

   d)on 10 November 2012 the men who had attempted to kidnap him came to his parents’ home and threatened his family.  They took his father away for questioning and broke his arm. 

4. Following the delegate’s decision to refuse him a protection visa, the applicant lodged an application for review with the Tribunal. Under cover of a letter dated 26 March 2013, the applicant provided the Tribunal with a medical certificate dated 11 November 2012 purportedly relating to his father’s injury and an untranslated letter purportedly from the local Justice of the Peace saying that the applicant’s father’s injuries had been “due to [the applicant’s] departure for Australia”.  The applicant also claimed that people in the community had given the police false information that he belonged to a terrorist organisation and this had led to his father being beaten.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that he is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal found that the applicant had fabricated his evidence about being pursued by members of the CID in 2008, 2009 and 2010, about the attempted abduction in April 2012 and about the events surrounding his father’s injury, noting that:

   a)the applicant provided contradictory evidence during different stages of the process:

   i)he stated at his entry interview that his father had been assaulted by a Sinhalese man on 18 January 2012 and that he had sustained an injury to his arm as a result.  However, at the Tribunal hearing he said that his father had sustained the injury on 10 November 2012 when he was assaulted by people who had come to look for him, the applicant;  

   ii)at his entry interview the applicant said that the people who had tried to abduct him had worn Navy uniforms but at the Tribunal hearing he said that they had worn unmarked clothes; and

   iii)the applicant said at his entry interview that the abduction attempt occurred while he had been getting food for his sister while at the Tribunal hearing he said that he had been getting food for his pet parrot;

   b)the applicant claimed that he had been of interest to the authorities from 2008 and yet he had been issued a passport and had been able to exit and re-enter Sri Lanka through formal channels in 2010 without encountering any problems; and

   c)in light of its concerns about the applicant’s evidence, the Tribunal gave little weight to the medical certificate dated 11 November 2012 and to the letter from the local Justice of the Peace, both of which purported to corroborate the applicant’s evidence about his father’s injuries.

3. The Tribunal did not accept that there was a real chance that the applicant would face serious harm or persecution in Sri Lanka due to his ethnicity/race as a Tamil (including being denied services that would affect his ability to subsist) and/or his imputed or actual political opinion as a supporter of the LTTE and/or as being opposed to the Sri Lankan government.  Further, the Tribunal not accept that there was a real chance that the applicant would face serious harm in Sri Lanka due to the discriminatory application of legislation or because he came from Trincomalee.  In reaching these conclusions, the Tribunal had regard to the following:

   a)UNHCR guidelines of December 2012 which indicated that area of origin and ethnicity alone were not enough to engage the elements of the Convention;

   b)the applicant had lived in his home area for a significant time, had worked with his father as a fisherman from 2008 until 2012 and had other qualifications including as a welder and motor mechanic;

   c)the applicant had been granted a passport by the Sri Lankan authorities; and

   d)the applicant had exited Sri Lanka illegally and spent time in India and then returned to Sri Lanka legally without facing serious harm or persecution.  He had subsequently been able to legally exit and re-enter Sri Lanka again without issue.

4. In relation to the applicant’s claim that people in the community had given the police false information that he belonged to a terrorist organisation, given the Tribunal’s concerns regarding his credibility and in light of the limited evidence provided by the applicant to support this claim, the Tribunal did not accept that the applicant had a well-founded fear on this basis.

5. The Tribunal noted in this regard that country of origin information indicated that all returnees would be subject to an interview process and that those who had departed illegally would be held on remand, usually for a few days, pending the next court sitting.  Given this information, and having found that the applicant had not been of interest to the authorities prior to coming to Australia, the Tribunal did not accept that there was real chance that he would face serious harm in Sri Lanka due to his status as a failed asylum seeker and/or due to his illegal departure. 

6. Based on the evidence before it, the Tribunal also found that there were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Tribunal committed jurisdictional error when it failed to deal with the applicant’s claim persecution as a member of a particular social group.

   Particulars:

   The Tribunal failed to consider the issue of a particu1ar social group that was advanced by the Applicant (CB 198.5 and CB 199.6) [or erroneously equating Tamil ethnicity as consideration of the Applicant’s social group. (CB 281 at [34])] and whether the alternative Convention ground of social group with various attributes (including Tamil ethnicity / race) would establish well-founded fear.

   2.[not pressed]

   3.The Tribunal erred in failing to lawfully construe and apply the words, “well-founded fear of persecution” in Article 1A[2] of the Refugee Convention.

   Particulars

   a)People in the applicant’s community gave the police information that he belonged to a terrorist organisation.

   b)The Tribunal concluded that there was no real chance of persecution.

   c)Just because the Tribunal came to the conclusion that the applicant had provided limited evidence to support his claim that in itself does not nullify the authorities’ imputed political opinion that he belonged to a terrorist organisation against the Sri Lankan government.

   d)Those considered to be linked with a terrorist organisation are considered to have a risk profile.

   [(e) – (i) not pressed]

   4.[not pressed]

   5.[not pressed]

Ground 1

1. In para.1(c) of their letter to the Tribunal dated 26 March 2013 the applicant’s advisers submitted:

   Our client ... fears that there is a real chance that he will suffer persecution throughout Sri Lanka because of:

   ...

   (c)his membership of a particular social group (failed asylum seekers returning to Sri Lanka).

2. That claim was considered at para.37 of the Tribunal’s reasons but the applicant alleged that the Tribunal should have considered a wider particular social group claim.  He submitted that he had claimed, or that such a claim arose tolerably clearly from the material before the Tribunal, to have been a member of a number of particular social groups and that the Tribunal had not considered that claim or those claims.  In para.10 of his written submissions his counsel argued:

   The social particular group/s that related to the Applicant was identified by the Applicant and also arose from all the circumstances the material before the Tribunal. The Applicant submits that the proper social group on the material before the Tribunal was social group with much more propounded  characteristics / attributes such as:

   (i)Sri Lankan (country of reference);

   (ii)Hindu;

   (iii)young male;

   (iv)from East;

   (v)Tamil ethnicity;

   (vi)left the country illegally.

   (vii)Additionally, persons likely to be perceived or are suspected or likely to be imputed of having some allegiance to LTTE or so imputed as residents of former LTTE controlled area;

   (viii)and made application for asylum abroad.

3. It can be seen that the matters on which the applicant now seeks to rely were not the ones he raised with the Tribunal.  Because he was represented before it, the Tribunal was entitled to infer that an informed decision had been made to not pursue any claims which might have been available but which were not expressly pressed.  The Tribunal was not required to consider claims which the represented applicant did not make: SZTOK v Minister for Immigration & Border Protection [2015] FCA 929.

Ground 3

1. The applicant submitted in connection with ground 3 of his amended application that the Tribunal had applied the balance of probabilities test rather than the real chance test when deciding whether he had been denounced to the Sri Lankan police as belonging to a terrorist organisation. 

2. The applicant submitted that the evidence of the Tribunal’s erroneous approach was to be found in para.36 of its reasons where it said:

   The Tribunal also considered the applicant’s claims that people in the community gave the police force information that he belonged to a terrorist organisation.  However, in light of the limited evidence provided to support this claim, and the concerns raised by the Tribunal regarding the applicant’s credibility, the Tribunal finds that this claim has not been established.  Therefore the Tribunal finds that the applicant does not have a well-founded fear on this basis.

3. Contrary to the applicant’s argument, the Tribunal did not err.  The Tribunal followed the appropriate, staged process.  It decided an intermediate fact, whether the applicant had been denounced, before deciding, on the facts as found, whether the applicant had a well-founded fear of persecution.  The real chance test is not a test to be applied when deciding intermediate matters of fact but is applied when the Tribunal is considering the risk that a person might face persecution if returned to his or her country of nationality or usual residence.  No error was committed by the Tribunal in not employing the real chance test when making an intermediate finding of fact.

4. Consequently, the error particularised in particulars (a) and (b) of ground 3 of the amended application are not made out.

5. In particular (c) of ground 3 the applicant referred to his claim that the Sri Lankan authorities would impute to him an anti-government opinion regardless of whether he had been denounced to the police as a member of a terrorist organisation.  In that particular he said:

   Just because the Tribunal came to the conclusion that the applicant had provided limited evidence to support his claim that in itself does not nullify the authorities’ imputed political opinion that he belonged to a terrorist organisation against the Sri Lankan government.

6. Contrary to the implication of that particular, the Tribunal did not accept that any other of the applicant’s allegations demonstrated that the Sri Lankan authorities would impute anti-government views to him.  As a result, there was nothing to “nullify”.  Consequently, the error particularised in particular (c) of ground 3 of the application is not made out.

7. In light of my conclusion that the Tribunal did not misapply the real chance test, the matter raised in particular (d) loses whatever significance it might otherwise have had.  It does not identify any jurisdictional error by the Tribunal.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 18 September 2015