SZSVW v Minister for Immigration

[2013] FCCA 2143

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSVW v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2143

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution on various bases in Sri Lanka – Tribunal making adverse credibility findings – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.46A

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZSVW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1066 of 2013

Judgment of: Judge Driver

Hearing date: 11 December 2013

Delivered at: Sydney

Delivered on: 11 December 2013

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Ms B Rayment

Sparke Helmore

ORDERS

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

2. The application filed on 17 May 2013 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1066 of 2013

SZSVW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal.  The decision was made on 29 April 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Sri Lanka and had made claims of persecution based upon his Tamil ethnicity and imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and as a person who is in opposition to the Sri Lankan Government, as a member of the particular social group of failed Tamil asylum seekers and by reason of his Christian religion.

2. The following statement of background facts relating to the applicant’s claims and the decisions of the delegate and the Tribunal on them is derived from the Minister’s outline of written submissions, filed on 3 December 2013. 

3. The applicant, a citizen of Sri Lanka, arrived in Australia as an irregular maritime arrival on 16 July 2012[1]. On 2 November 2012, the applicant applied to the Minister’s Department) for a protection visa after the Minister decided to lift the bar under s.46A(2) of the Migration Act 1958 (Cth)[2]. He appointed a representative to assist him in connection with that application[3].

   [1] Court Book (CB) 112.6

   [2] CB 29-55

   [3] CB 56-59

4. The applicant claimed to fear harm, from the Sri Lankan Army (SLA), paramilitary groups and people in white vans on the basis of his Tamil ethnicity, imputed or actual support of the LTTE and as a Christian. The applicant also claimed that he would face harm as a failed asylum seeker.

5. The applicant claimed that in 2012, people in white vans came for him on three occasions during six days that he was in Sri Lanka. They also visited his family on multiple occasions while he was away in Kuwait working as a driver.  Both the applicant and members of his family had been assaulted and persecuted in the past by members of the SLA, the police and a paramilitary group, the TMVP/Karuna group.  The applicant was beaten in 1997/98 and 2007/08 and on an annual basis between 2003 and 2008 by the police and the SLA.  In 2009, members of the TMVP/Karuna group also allegedly beat him and stole goods from his store. The applicant’s brothers also suffered past harm: one was abducted by a white van in 1997/98; another suffered mental retardation after being beaten by the SLA; and another was jailed and beaten as part of a ‘round up’ in 1987/88.  After the applicant’s brother was abducted in 1997/98 his family were accused of being LTTE supporters and were forced to sign in at the SLA base every month for a two year period during the civil war.  In addition, the applicant claimed that he was a Christian and his father was a pastor at a Christian church which he had built. In 1995 or 1996 people threw stones at the church and stole part of a sculpture outside the church[4].

   [4] CB 214-218

6. The applicant attended an interview with a delegate of the Minister on 9 January 2013 and his representative also provided the Department with written submissions containing extracts of country information[5]. 

   [5] CB 131-140; 116.5-117.9

The delegate’s decision

1. On 23 January 2103, the delegate made a decision refusing to grant the applicant a protection visa[6].  The delegate was not satisfied on the basis of the available independent country information that there was a real chance that the applicant would face serious harm for reasons of his Tamil ethnicity or as a failed asylum seeker[7]. The delegate did not accept the applicant’s claims to have an adverse political profile with the Sri Lankan authorities[8].  The delegate was also not satisfied that there was a real risk that the applicant would suffer significant harm as a consequence of being returned to Sri Lanka[9].

   [6] CB 112-130

   [7] CB 124.5, 126.5

   [8] CB 124.8

   [9] CB 129.5

2. For these reasons, the delegate found that the applicant was not a person to whom Australia owed protection obligations[10].

   [10] CB 130

The Tribunal’s proceedings

1. On 29 January 2013, the applicant lodged an application with the Tribunal to review the delegate’s decision[11]. He also appointed a representative to assist him in connection with the review[12].

   [11] CB 142-146

   [12] CB 144

2. By a letter dated 22 February 2013, the Tribunal invited the applicant to attend a hearing before it scheduled for 25 March 2013[13].

   [13] CB 152-155

3. On 18 March 2013, the applicant’s representative provided further written submissions to the Tribunal[14].  These submissions claimed that the applicant feared persecution in Sri Lanka for reasons of his imputed political opinion (because he would be suspected of supporting the LTTE), his Tamil ethnicity and membership of the particular social group comprising “Tamil returned failed asylum seekers”[15]. The submission also referred to and enclosed various pieces of country information said to support these claims[16].

   [14] CB 156-204

   [15] CB 156-176

   [16] CB 177-204

4. The applicant appeared before the Tribunal on 25 March 2013 to give evidence and present arguments in support of his claims[17].

   [17] CB 205-207; 216-217, [25]-[27]

The Tribunal’s decision

1. In its decision dated 29 April 2013, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa[18].

   [18] CB 211-226

2. The Tribunal accepted that the applicant was a citizen of Sri Lanka[19] but did not accept his evidence that people in white vans followed and attempted to abduct him on several occasions. It found he only provided “vague answers” which “lacked credibility” in response to the Tribunal’s questions for further details regarding these events and found he had “fabricated his evidence”[20].

   [19] CB 217, [29]

   [20] CB 218, [35]

3. The Tribunal also noted the applicant’s evidence that he had been issued with three Sri Lankan passports and had exited and re-entered Sri Lanka legally on numerous occasions before coming to Australia[21]. It was also concerned that he had provided “very limited evidence” about the three occasions that people in white vans allegedly came for him and expressed doubt about whether his claimed fear of harm on this basis was well-founded[22].

   [21] CB 217, [31]

   [22] CB 217, [33]-[34]

4. The Tribunal specifically considered the applicant’s claims of past harm that he and his family allegedly faced from the police, SLA and paramilitary groups as well as his claims arising from being a Tamil male from the North[23]. In considering these claims, the Tribunal took into account the applicant’s “lack of detail, vague evidence and the developments” in his evidence since his first interview and his evidence that he had never been detained or arrested[24].

   [23] CB 218, [36]

   [24] CB 218, [37]

5. On the basis of independent country information, the Tribunal accepted the applicant’s claims that he and his family experienced adverse treatment and physical violence during or at the end of the civil war[25] and that his family might have been visited when people from his area returned from Christmas Island.  The Tribunal did not accept, however, that the applicant’s family were visited by people in white vans and found he had “fabricated evidence” regarding the white vans generally to “enhance his claims”[26].

   [25] CB 218, [38]

   [26] CB 218-219, [39]

6. Nor did the Tribunal accept the applicant’s claims that he was beaten on a yearly basis, his family was accused by the SLA of being LTTE supporters and had been visited by white vans. It found that his evidence in this regard was “fabricated”. It noted again that the applicant had never been abducted or arrested by his alleged persecutors and found that his evidence was “vague” and “unconvincing”.  It found further that the applicant’s ability to have three passports granted and to depart Sri Lanka without issue indicated he was not of interest to the Sri Lankan authorities and undermined his claim that his family were accused of being LTTE supporters[27].

   [27] CB 219, [40]

7. In addition, the Tribunal found that any shoplifting the applicant experienced by people in the community was not systematic and discriminatory conduct that amounted to serious harm[28].

   [28] CB 219, [41]

8. For these reasons, the Tribunal found that the applicant did not have a well-founded fear of serious harm as a Tamil male from the North or his related claims.  Nor did it accept that the authorities perceived the applicant as having links to the LTTE or would impute him with a pro-LTTE political opinion in the future[29].

   [29] CB 219-220, [42]

9. Whilst accepting on the basis of accepted independent country information that one of the applicant’s brothers may have been killed and another detained in a roundup during the civil war, the Tribunal did not accept that this caused the applicant to have been imputed with a pro-LTTE opinion or meant that his family had suffered harm since the civil war[30]. The Tribunal had “doubts” as to the truthfulness of the claim that his brother was detained and bashed by the SLA and found the applicant’s evidence in this regard was “contradictory or circular”. Despite this, it found that if his brother was detained it would have been during the war and that the applicant’s family had not suffered harm for a Convention reason since the war[31].

   [30] CB 221, [51]

   [31] CB 221, [52]

10. The Tribunal rejected the applicant’s claim and associated claims that his family had been accused of being LTTE supporters because he had provided “vague and unconvincing” evidence and his claims were broad. It noted that his passport and travel history suggested that he and his family were not of interest to the authorities[32]. It also rejected his claim to fear harm because of his family’s wealth and found his evidence in this regard failed to refer to any specific incidents and was “fanciful” and “general”[33].

    [32] CB 221, [53]

    [33] CB 221-222, [54]

11. Whilst accepting that the applicant suffered past harm due to his religion (namely, stones being thrown at the church and having parts of the church stolen), the Tribunal did not accept this constituted serious harm. Also, given that the events occurred in 1995 or 1996 and there was no evidence to indicate that the applicant had suffered any religion-based harm since then, it did not accept he had a well-founded fear of persecution due to his religion[34].

    [34] CB 222, [56]-[57]

12. The Tribunal specifically noted that it was unnecessary for it to consider relocation given that it had not accepted that the applicant faced a real chance of Convention-related persecution in his local area. Despite this, the Tribunal found[35] that if it “had considered relocation” then it would have found that the applicant could live independently as he had overseas, his family was able to provide him with financial support and he could relocate to several areas including Colombo, which the independent country information indicated had a substantial Tamil population.

    [35] at CB 223, [63]

13. The Tribunal also found that the applicant did not have a well-founded fear of serious harm or persecution as a failed asylum seeker. The Tribunal relied on independent country information that indicated all returnees were treated alike regardless of ethnicity and found that if the applicant was interviewed by the authorities and detained briefly prior to being bailed, this did not constitute serious harm or persecution. It also relied on his past ability to obtain three passports and to repeatedly exit and re-enter Sri Lanka to find that he would not suffer harm in his local area because he was a failed asylum seeker[36].

    [36] CB 223-224, [64]-[68]

14. In assessing the applicant’s entitlement to complementary protection, the Tribunal found there was insufficient evidence before it to enable it to be satisfied that the applicant’s claims were genuine or, if they were genuine, that this would lead to significant harm. For this reason, the Tribunal was not satisfied that there were substantial grounds for believing that he faced a real risk of significant harm[37].

    [37] CB 224-225, [68]-[72]

15. The Tribunal re-stated the factual findings that it had made in assessing the applicant’s refugee claims[38] to reject the applicant’s claims that he or his family faced a real risk of significant harm in the future. It did not accept that the applicant or his family had been of interest to authorities since the end of the war and whilst it accepted that the applicant would be questioned and possibly detained and eventually bailed by the Sri Lankan authorities upon his return, it found on the basis of accepted independent country information that this did not constitute significant harm[39].

    [38] CB 224-225, [69]-[71]

    [39] CB 225, [70]-[71]

16. These proceedings began with a show cause application filed on 17 May 2013.  The applicant continues to rely upon that application.  There are two grounds in that application:

    1.The RRT erred in law as it failed to inquire into a crucial claim of the Applicant.

    Particulars

    It was one of the claims of the Applicant that his family [were] considered as LTTE supporters.  The RRT did not [consider] this claim as this is the central claim of the applicant around which other alleged incidents occurred.

    2.The RRT decision is infected with a jurisdictional error in accordance with Contra-prorerendum law.

    Particulars

    At one point RRT accepts the version of [the] applicant that his brother was mentally retarded and at another [point] it repudiates the allegation made by the Applicant.

17. The answer to the first ground is that the Tribunal considered the applicant’s claims based upon the asserted imputed political opinion attributed to him and his family.  In relation to the applicant that consideration commences at [30] of the Tribunal’s reasons[40] and continues to [42]. In relation to other members of the applicant’s family, a consideration commences at [43] of the Tribunal’s reasons and continues to [54]. I am satisfied that the Tribunal considered all elements or integers of the applicant’s claims.

    [40] CB 217

18. It was obvious from the applicant’s oral submissions today that his real concern is not with the asserted lack of consideration of his claims, but with the Tribunal’s findings on those claims. That goes to the merits of the Tribunal decision, which are beyond the scope of these proceedings. The Tribunal’s findings of fact, including its assessment of the applicant’s credibility and the credibility of his claims, were open to it to make on the evidence before it and for the reasons that it gave. The Tribunal was not obliged to uncritically accept any and all allegations made by an applicant,[41] and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function[42].  The Tribunal was the sole arbiter of the facts and evidence, and the Court cannot review the merits of the Tribunal’s decision.

    [41] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278

    [42] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282

19. As is noted in the Minister’s submissions, the second ground appears to be an attempt to rely upon the maxim contra proferentum.  The particulars assert that the Tribunal erred by both accepting and then rejecting the claim that the applicant has a brother who was “mentally retarded”. 

20. During the course of oral argument the interpreter, in seeking to convey my observations to the applicant, queried whether the legal maxim was intended to raise the proposition that the Tribunal’s decision or the decision record should be interpreted in the manner least favourable to the Tribunal.  That suggestion indicates a grasp of the legal issues of some depth on the part of the interpreter.  But if that proposition was intended to be raised, I reject it. 

21. In terms of the particulars advanced, the Tribunal noted the applicant’s claim in relation to his brother at [44] of its reasons[43].  At [51] and [52][44], the Tribunal doubted the authenticity of that claim, having regard to what the Tribunal saw as internal inconsistency in the applicant’s account.  In his oral submissions the applicant sought to tender additional information in support of his claims.  The applicant showed me a photograph of his brother.  The photograph showed a young man with facial disfigurement and deformed hands.  The applicant also showed me what purports to be a medical certificate from the medical superintendent of a hospital in the applicant’s home area.  The medical certificate states that the individual, who the applicant says is his brother, suffers from post-traumatic stress disorder as a result of violence in the region and needs day-to-day care and support.  As I said to the applicant, that document, which is dated 4 July 2013, was not available to the Tribunal and I declined to receive it as evidence.  However, as I pointed out to the applicant, if the document had been available to the Tribunal it would have raised more questions than it answered.  It could not on its face have supported the proposition that the applicant’s brother suffers mental disabilities either as a cause of or a consequence of being beaten by the Sri Lankan authorities.  I reject ground 2. 

    [43] CB 220

    [44] CB 221

22. I explained several times to the applicant that the Court cannot review the merits of the Tribunal decision.  It was apparent, however, that that is what he seeks.  I explained to the applicant that only the Minister can change a valid decision of the Tribunal.  The applicant became emotional and his emotions appeared genuine.  He appears to be genuinely afraid to return to Sri Lanka.  That fear appears to me to be out of proportion with the objective facts dealt with by the Tribunal.  I told the applicant that if there is anything he has not revealed bearing upon his claim for protection it is imperative that he reveal that concealed information to the Minister’s Department.  He told me that he understood[45].  Any further consideration of the applicant’s claims by the Minister is, of course, a matter beyond the scope of this proceeding and a matter over which this Court has no influence. 

    [45] The applicant told me something during this discussion which, if true, would be important.  I have decided that it would be inappropriate to record what he told me in these reasons.

23. I will order that the application filed on 17 May 2013 is dismissed.

24. In consequence of the dismissal of the application the Minister seeks an order for costs, fixed in the sum of $5,400.  Scale costs in this instance would be $6,646.  The applicant indicated that he would require time to pay.  I will not require payment of costs by any specific date.

1. I will order that that applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  13 December 2013