SZSXM v Minister for Immigration

[2013] FCCA 1265

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSXM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1265

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – applicant claiming political persecution in Sri Lanka – applicant disbelieved in important respects – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425

Applicant: SZSXM

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1232 of 2013

Judgment of: Judge Driver

Hearing date: 3 September 2013

Delivered at: Sydney

Delivered on: 3 September 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr M Alderton

Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1232 of 2013

SZSXM

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

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 (Tribunal).  The decision was made on 14 May 2013.  The Tribunal affirmed a decision of a 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 on imputed political opinion.  He arrived in Australia as an irregular maritime arrival on 17 February 2012.  He was interviewed at the Sherga detention centre by a Departmental officer on 23 March 2012.  He applied for a protection visa on 22 May 2012.  The delegate refused that application on 17 August 2012, and the applicant sought review of that decision by the Tribunal.

2. The applicant’s claims at the various stages of consideration have been broadly consistent.  The applicant worked as goldsmith in Colombo, selling jewellery between 2000 and 2010.  At his initial interview he said that he fears harm in Sri Lanka because in 2010 he was given jewellery and/or gold, laptops and a camera for safekeeping when several people came to stay in his house in Colombo.  He believes that two of the people were from the Liberation Tigers of Tamil Eelam (Tamil Tigers) and he later found out that the jewellery belonged to people detained in the Vavuniya camp in Sri Lanka.

3. He claimed the Sri Lankan CID later discovered and confiscated the laptops and other property, and detained and questioned him for three days.  The applicant’s father found out that the items belonged to the Tamil Tigers and paid a bribe to secure the applicant’s release.  Later, the applicant claimed that his father was shot dead in May 2011.  The matter was investigated by the police but nothing came of that investigation.  The applicant left Sri Lanka in 2010 and went to the Ivory Coast.  He says that he made efforts to travel on to another safe place from there but was unsuccessful.  Because of problems in the Ivory Coast, he returned to Sri Lanka in 2012.

4. The applicant claimed that he feared for his safety in Sri Lanka and went into hiding before travelling to Australia.  The applicant supplied a number of documents to the Department and the Tribunal in support of his claims.  The Tribunal was unable to make a favourable decision on the papers, and invited the applicant to attend a hearing.  He appeared before the Tribunal on 5 October 2012 and 30 October 2012.

5. It appears from the Tribunal’s record of those hearings that the applicant was questioned at some length about his travel history and the detail of his claims.  The Tribunal received a submission on behalf of the applicant in support of his claims.  The Tribunal found that the applicant feared harm in Sri Lanka from the Sri Lanka authorities, the CID, the police, the army, security and groups that support them, including the Karuna group, as well as non-state actors and their friends who were involved in the dispute over the gold. 

6. The applicant claimed he fears harm from both the person who owned the gold entrusted to him and the person who the applicant now claims he gave the gold to, to look after.  The applicant claimed that he will be imputed as a Tamil Tiger supporter or sympathiser.  The Tribunal accepted that the country information available to it supported in a general way the risks faced by young Tamil men returning to Sri Lanka who may be suspected of having ties to the Tamil Tigers.  The Tribunal pointed out, however, that the country information is in some respects inconsistent.

7. The Tribunal nevertheless accepted that Tamil returnees to Sri Lanka and those who have left illegally are often questioned and screened on their return, and that those who are considered to be supporters of, or affiliated with, the Tamil Tigers are at risk of harm.  The Tribunal also accepted from country information that bribery and corruption of officials are common in Sri Lanka.  The Tribunal accepted that the applicant left Sri Lanka and travelled to Kenya and the Ivory Coast in 2010, and returned to Sri Lanka in May 2011.  It appears he used his own passport for that travel, and undertook the departure and return to Sri Lanka without difficulty.

8. While it had some doubts, the Tribunal accepted that in 2010, the applicant was involved in a dispute with certain individuals, whom he named, about gold left with him for safekeeping, which went missing.  The Tribunal did not accept as true, however, that the applicant left his country in either 2010 or in 2012, or cannot return there, because he feared or fears harm amounting to serious or significant harm from the CID or other Sri Lankan authorities, or associated groups, or from non-state actors for the reasons that he claims, associated with the events he claims which occurred in Sri Lanka in 2010 and 2012.

9. The Tribunal rejected the applicant’s claim that he was detained by the CID in September 2010, or that he left Sri Lanka because the CID threatened him and told him to leave Sri Lanka at that time, after a bribe was paid for his release.  The Tribunal did not accept as true that the applicant was in hiding at any time in Sri Lanka for the reasons that he claims; that his relatives in his home town are being asked about him for the reasons that he claims; or that his uncle was assaulted or his father killed for the reasons that he claims.

10. The Tribunal took into account the applicant’s apparent lack of difficulty in re-entering Sri Lanka in 2011, after his travel to Africa.  The Tribunal took into account also that the applicant apparently faced no real problems following his return to Sri Lanka, before he left for Australia in February 2012.  The Tribunal was concerned about confusion in the applicant’s account about where he had been allegedly hiding over that period.  The Tribunal did not consider that the applicant faced a serious or significant risk of harm on return to Sri Lanka, either in the event of questioning at the airport or afterwards.  The Tribunal concluded that the applicant did not meet the criteria for a protection visa either under the refugees criterion or the complementary protection criterion. 

11. These proceedings began with a show cause application filed on 3 June 2013.  There are three unparticularised grounds in that application:

    1. The RRT failed to assess my Convention claims in a proper manner

    2. The RRT failed to take into account my serious harms that I fear to return to Sri Lanka.

    3. The RRT went beyond their jurisdiction and failed to [follow] proper procedure required by law.

12. The applicant continues to rely upon that application.  The application is supported by a short affidavit filed on the same day, which I received as evidence.  I also received as evidence the court book filed on 8 July 2013.

13. In his oral submissions, the applicant claimed that the Tribunal had overlooked the issue of the risk of harm he faced having housed two persons who later were revealed as Tamil Tiger operatives.  However, on analysis of the Tribunal’s reasons, it is clear that that claim was considered.  The applicant also asserted that the Tribunal had not properly considered his claims concerning the dispute over the gold and the death of his father.  The first, however, was clearly considered, and the second was considered to the extent that it could be on the very limited information provided by the applicant.

14. The applicant was not able to point to any procedural error made by the Tribunal other than the asserted failure to consider his claims. The Tribunal met its obligation to conduct a hearing, pursuant to s.425 of the Migration Act 1958 (Cth) (Migration Act). It does not appear that there was any information requiring disclosure to him pursuant to s.424A of the Migration Act. The Tribunal clearly understood the task that it had to perform, acted reasonably and made conclusions open to it on the material before it. Nothing was overlooked.

15. I conclude that the applicant has been unable to demonstrate an arguable case of jurisdictional error by the Tribunal, and accordingly I will order that the applicant be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant said that he would pay the costs sought. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

17. I will further direct that the name of the first respondent be amended to the Minister for Immigration, Multicultural Affairs and Citizenship.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  6 September 2013