SZSXS v Minister for Immigration

[2013] FCCA 2316

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSXS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2316

Catchwords:

MIGRATION – Application for protection visa – consideration, country information relating to treatment failed asylum seekers returning to Sri Lanka – tribunal’s consideration country information provided by the applicant – tribunal considered country information independently sourced – application admissible attempted merits review – application dismissed.

Applicant: SZSXS

First Respondent: MINSTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1283 of 2013

Judgment of: Judge Jarrett

Hearing date: 7 November 2013

Date of Last Submission: 7 November 2013

Delivered at: Brisbane

Delivered on: 7 November 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Ms Kelly

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection.”

2. The application filed on 11 June 2013 is dismissed.

3. The applicant pay to the first respondents’ costs of and incidental to the application fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

SYG 1283 of 2013

SZSXS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. The applicant in these proceedings is a Tamil male who was born in 1982 in Sri Lanka.  According to the material, and the decision of a refugee review tribunal, he is a married man with children who worked as a farmer and driver before he left Sri Lanka in early 2012. 

2. He arrived in Australia by boat on or about 18 May, 2012 and subsequently, in August, 2012 he applied for a protection visa.  A delegate of the Minister, the first respondent to these proceedings, refused to grant the visa in October, 2012 and determined that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention.

3. The applicant applied to a refugee review tribunal for a review of the delegate’s decision.  On 4 February, 2013 he was invited to attend a hearing before the tribunal to give evidence and present his arguments. 

4. A hearing occurred on 20 March, 2013.  The applicant was represented by a migration agent.  He provided written submissions and other material for the purposes of that hearing.  Before the tribunal, the applicant claimed that he had a genuine fear of persecution should he be returned to Sri Lanka.  He nominated five reasons upon which he based his fear. 

5. He said that he was a member of a particular social group, namely Tamils involved in land disputes, and as a member of that social group, he was at risk of persecution. He said that by reason of his ethnicity, he was at a real risk of persecution from the government forces in Sri Lanka, and that notwithstanding the cessation of the civil war in Sri Lanka, Tamil males in particular continued to be the subject of serious harm.  His Tamil ethnicity was also relevant to the third ground that he relied upon, namely that the Sri Lankan authorities would impute to him an adverse political opinion because of his Tamil ethnicity, because he lived previously in an area controlled by the Liberation Tigers of Tamil Eelam, and because he had made asylum claims in respect of his position in Australia. He claimed also that he would face serious harm because he once removed Buddhist statues from his parents’ Hindu temple.  He claimed that he was at risk of serious harm because he is now known to have made asylum claims which implicate a group recorded in the material as the Karuna group and, as I touched on earlier, he claimed that if his protection visa was refused, and he was forcibly returned to Sri Lanka, he would face serious harm because he would be viewed by the Sri Lankan authorities as a failed Tamil asylum seeker.

6. The tribunal, in its record of decision, dealt with each of those claims.  The tribunal set out the applicant’s claims and evidence in relation to his membership of the social group Tamils involved in land disputes.  The tribunal carefully considered those claims and made findings which, in my view, were open on the evidence before it.  In particular it found:

   a)that the applicant had no legal entitlements to the land that he raised in his arguments;

   b)that he willingly gave up his interest in that land when he left Sri Lanka for Australia; and

   c)that he had no basis on which to attempt to reclaim or cultivate the land in question. 

7. The tribunal considered that he had no ongoing connection to the land and no basis upon which he had a claim to use that land. 

8. The tribunal was not satisfied that the applicant had been targeted for harm or had experienced any harm arising out of his connection with the land from the SLA, the CID, or the Karuna group. 

9. The tribunal dealt with his claims that, since he had left Sri Lanka, there had been enquiries made about him, but ultimately rejected that evidence. 

10. The tribunal considered his claim that, by reason of his Tamil ethnicity, and by reason of where he had lived in Sri Lanka, he might be the subject of serious harm in the future.  The tribunal considered some information from the UNHCR guidelines to assist it to determine that the applicant’s fears in that regard were not well founded. 

11. The tribunal rejected the proposition that an adverse political opinion would be imputed to him, or that he would in some other way be linked to the LTTE, by reason of his Tamil ethnicity, or his former area of residence.

12. Similarly, the tribunal considered his claim that by reason of some purported connection with the Karuna Group there would be an adverse political opinion imputed to him.  The tribunal was not satisfied that the applicant had any imputed political opinion that was opposed to the Karuna Group, or that he would be imputed to have such an opinion in the reasonably foreseeable future. 

13. The tribunal went on to consider the applicant’s claims that he feared forced recruitment by the TMVP, or the Karuna Group, who he said forcibly recruited young Tamil men.

14. The tribunal was not satisfied that the applicant faced a real chance, or a real risk, of forcible recruitment by either the TMVP, or the Karuna group, in the reasonably foreseeable future. 

15. The tribunal considered the claim arising out of the applicant’s assertion that he had a well founded fear of persecution because he removed some artefacts from his parents’ Hindu temple, and rejected that claim.

16. The applicant makes no complaint in his application about the way in which the tribunal dealt with any of those matters.  His complaint is focused upon the way in which the tribunal dealt with his claim that he would be the subject of persecution as a returning failed asylum seeker.  The tribunal commenced to consider that matter at paragraph 47 of the record of decision.  The tribunal set out the material that had been provided to it by the applicant, and his representatives.  That material included reports by Human Rights Watch, Amnesty International and Freedom From Torture.

17. His material noted that there was a lack of UNHCR monitoring of forcible returnees to Sri Lanka, and that earlier this year the United Kingdom High Court had ordered a stay of removals of failed Tamil asylum seekers from that country.  His submissions pointed out that the publicity that presently surrounds asylum seekers from Sri Lanka arriving in Australia by boat is such as would alert the Sri Lankan authorities to the applicant being a failed asylum seeker.

18. The tribunal is not bound to consider just the information placed before it by the applicant.  It is a matter for the tribunal to determine which country information it will rely upon in its decision.  The tribunal is obliged to form its own assessment about the accuracy and the weight to be given to any particular country information.  It is often the case that there is conflicting country information, and the selection and use to which country information is put is a matter entirely for the tribunal.

19. In this matter, in addition to referring to the material to which I have already referred, the tribunal referred to information from the Immigration and Refugee Board of Canada.  It referred to “recent advice” from the Australian Department of Foreign Affairs and information from the Canadian High Commission.  The tribunal specifically noted that there were a number of organisations that have provided alternative information to that referred to by the tribunal, and that the tribunal considered organisations, such as Amnesty International, Human Rights Watch and Freedom From Torture, as reputable organisations.

20. The tribunal went on to consider a report by the UK Home Office, and some observations by the Immigration and Asylum Chamber (Upper Tribunal).  The tribunal considered reports and press releases from the UNHCR, and the UK Border Policy bulletin issued in October, 2012.  The tribunal’s balancing, consideration and weighing of that evidence appears between paragraphs 48 and 55 of its reasons for decision. 

21. The tribunal determined on balance “based on the totality of the evidence before it” that it was not satisfied that the evidence reveals a real chance of persecution involving serious harm for the essential and significant reason of the applicant’s membership of a particular social group, namely failed asylum seekers, including those who are Tamil males with links to a former LTTE stronghold location.

22. The tribunal went on to consider any prospect of serious harm occurring to the applicant by reason of him having departed Sri Lanka illegally, and determined that the laws that would apply to him because he left Sri Lanka without a passport were laws or processes of general application, and as such would not constitute persecution for the purposes of the Convention. 

23. The tribunal completed its decision by considering the complementary protection provisions of the Migration Act, and the applicant makes no complaint about the tribunal’s treatment of that aspect of the matter.

24. I accept the first respondent’s argument that the ground of review relied upon by the applicant is an attempt to have the merits of his application reassessed.  Merits review in this court is impermissible.  I accept the first respondent’s argument that the tribunal discharged its duty to give proper consideration to the merits of the applicant’s claims, and the decision record of the tribunal reveals no jurisdictional error. 

25. The application must therefore be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 November, 2013.

Associate: 

Date:  22 January 2014