SZSZP v Minister for Immigration & Border Protection - [2014] FCCA 1140

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSZP v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR

[2014] FCCA 1140

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all claims made by the applicant – whether the Refugee Review Tribunal denied the applicant procedural fairness – whether the Refugee Review Tribunal failed to consider if the applicant met the complementary protection criterion – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474,
Migration Regulations 1994 (Cth) reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
MZYRD v Minister for Immigration (2012) FCA 830
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Applicant:

SZSZP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1434 of 2013

Judgment of:

Judge Emmett

Hearing date:

20 May 2014

Date of Last Submission:

20 May 2014

Delivered at:

Sydney

Delivered on:

2 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr Ashok Kumar

Solicitors for the Applicant:

Success Lawyers & Barristers

Solicitors for the Respondents:

Mr Andras Markus
Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1434 of 2013

SZSZP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 29 May 2013 and handed down on 30 May 2013 (“the RRT”).
The applicant claims to be a citizen of Sri Lanka and Hindu faith and Tamil ethnicity.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

The applicant arrived in Australia on 30 April 2012 as an unauthorised maritime arrival, having departed illegally from Sri Lanka.
On 13 August 2012, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 12 October 2012, the Delegate refused the applicant’s application for a Protection visa.
On 19 November 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 29 May 2013, the RRT affirmed the decision of the Delegate not to grant a Protection visa.
On 25 June 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5(1) of the Act define “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425. Section 425 of the Act requires the RRT to invite the applicant to appear before it to give evidence and give arguments relating to the issues arising in relation to the decision under review. Section 424A of the Act requires the RRT to give to the applicant to comment certain information that the RRT considers the reason, or part of the reason, for affirming the decision under review.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

The applicant provided a statement in support of his protection visa application in which he stated:
a)The applicant fled Sri Lanka in April 2012 as he feared harm from the Army, Navy and Sri Lankan Task Force.
b)In 2012 there were several incidents which occurred in the applicant’s home village which indicated to the applicant that the Sri Lankan Government was conducting targeted kidnapping utilising white vans with dark tinted windows. The kidnappings were being conducted by the “EDPD” and the Karuna Group with the help of the Sri Lankan Army. Prior to the applicant departing his village, 12 young Tamil males were abducted. Subsequent to the applicant’s departure, 23 more young Tamil males have been abducted from the applicant’s village.
c)The applicant’s mother became scared that her children would be abducted. She sent two of her children to the United Kingdom as students and sold some of her jewellery to pay for the applicant to travel to Australia.
d)The applicant fled to India in May 2006 following trouble in his local area from Buddhist mobs. The applicant’s home village was traditionally Tamil area, however a large statue of Buddha was erected at the main bus station and the applicant’s community told to respect it. Mobs would force Tamils to worship the statue. Should anyone refuse to worship the statue, they were beaten by Sinhalese gangs. The applicant worked at a petrol station opposite the bus terminal where the statue was erected. The applicant was caught by a mob and forced to worship the statue on three occasions and on each occasion he was beaten. To avoid being beaten, the applicant pretended to worship the statue so he could go on his way.
e)The Tamils in the applicant’s area decided that they no longer wished to be forced to worship Buddha, and an uproar and protests started. The local Sinhalese retaliated, assisted by the Army, and approximately 100 people were killed on the streets. The applicant and his older brother illegally left Sri Lanka by boat for India.
f)Upon arrival in India, the local authorities wanted to know why the applicant had come to India and could not stay in Sri Lanka. The applicant and his brother were treated badly and spoken down to frequently. Whenever there were problems, the “Indian Authorities” would target the refugee camp in which the applicant was staying. Young Tamils were taken away under suspicion of being involved in trouble. The Indian Authorities would torture and persecute the Tamils. A friend of the applicant was taken by the Indian Authorities in 2007 “for investigation” and has not been heard from since. The applicant left India because he was scared and because of the hardship that he was enduring.
g)The applicant made his intention to leave India known to the Indian Authorities and was issued emergency travel documents from the Sri Lankan embassy in Chennai, India.
h)On week following the applicant’s return to Sri Lanka in October 2007, the Sri Lankan Army and Navy conducted a ‘round up’ of 15 people from the applicant’s village who had returned from other countries. The Navy maintained informers within the applicant’s village to make them aware of returnees.
i)The applicant was captured as part of the 15 people. His house was surrounded and he was taken to a beach five minutes’ walk from his house. He was lined up with the other people who had been rounded up by the authorities. They had their names read and were required to present their identification documents. When the applicant’s name was read out, a sailor hit him across the head with his gun and threatened to kill him. The applicant was then taken away along with 14 other people by the Army.
j)Due to the subsequent uproar, the Army decided to free the 15 people they had taken. The Army subsequently changed its methods and began to go house-to-house abducting people. The applicant’s cousin was taken and has not been seen or heard from since.
k)The applicant’s family attempted to lodge a complaint, however the police refused to act. The applicant was forced to avoid the round up actions.
l)In March 2008, the Navy ‘toned down’ the round ups. The applicant took a job as an attendant at a petrol station opposite a Buddhist temple. The local Sinhalese frequently refused to pay him on the basis of his ethnicity, which cost the applicant three months’ pay. On two occasions the applicant was beaten.
m)The applicant lodged complaints with the police, however the police did not act. The applicant was beaten by local Sinhalese and called degrading names. The applicant could not bear the discrimination and harassment and decided to leave Sri Lanka at the beginning of 2009.
n)The applicant fears for his life should he be returned to Sri Lanka as he would be targeted by the Army and the Navy for supposed ties to the Liberation Tigers of Tamil Elam (“LTTE”).

The Delegate’s decision

On 18 August 2012, the applicant attended an interview with the Delegate.
On 12 October 2013, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
While the Delegate accepted the bulk of the applicant’s claims, the Delegate did not accept the applicant’s claims to have been of any interest to authorities following his release in 2007. Nor did the Delegate accept the applicant’s claims to have gone into hiding a month and a half prior to leaving Sri Lanka due to “white van” abductions, or that this was the reason that he left Sri Lanka.
The Delegate found that the applicant did not hold a well-founded fear of persecution, and therefore did not enliven Australia’s protection obligations under the Convention pursuant to s.36(2)(a) of the Act.
The Delegate found further that there was not a real risk for believing that the applicant would be the subject of serious harm were he to be returned to Sri Lanka and for that reason did not enliven the complementary protection criterion pursuant to s.36(2)(aa) of the Act.

The RRT’s review and decision

On 19 November 2011, the applicant lodged an application for review of the Delegate’s decision by the RRT.
The applicant provided no further documents in support of his review application.
On 4 February 2013, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 28 March 2013 to give oral evidence and present arguments.
On 28 March 2013, the applicant attended the RRT hearing and gave evidence.
The RRT noted that it had before it the Department’s file, the Delegate’s decision record, and other materials available to it from a range of sources.
The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT put to the applicant country information for comment. The RRT identified with particularity the country information to which it had regard.
The RRT accepted the applicant’s claims as to place of birth and residence. The RRT noted inconsistencies within the applicant’s evidence, including inconsistencies relating to claims to have hidden at a relative’s house in January 2012, of his period of employment with his father, and his claims that his brother continues to live and work at the applicant’s home without adverse consequences. The RRT found the applicant’s claims to have lived in hiding in Sri Lanka since January 2012 as being “unconvincing”.
The RRT accepted that the “round up” described by the applicant as occurring in around October 2007 had occurred, but found that the applicant’s ability to obtain a passport in 2008 and travel between India and Sri Lanka without difficulty in 2008, 2010, and 2012 as being indicative of the applicant not being of adverse interest of the authorities as a result of that incident. The RRT examined the applicant’s evidence that he was fearful of either harm by or forced recruitment into a paramilitary group, however noted the applicant’s own evidence that he had lived most of his life around his home village and that his family continued to live there without harm.
The RRT had regard to the applicant’s claims to have been the subject of physical and verbal abuse while working as a petrol station attendant, but found that his experiences were the result of working late at night at a petrol station and that these experiences stopped with the cessation of the applicant’s employment.
The RRT was not satisfied that, should the applicant return to Sri Lanka, the he would face serious harm for a Convention related reason for reason of his Tamil ethnicity; his imputed political opinion; his illegal departure from Sri Lanka and being failed asylum seeker; or his fear of abduction.
The RRT also considered the applicant’s claims in respect of complementary protection, however found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm. The RRT gave particular consideration to the harm the applicant could suffer b reason of his having departed Sri Lanka illegally, including the possibility of being remanded for a short period in poor conditions and being brought before a court to apply for bail but found that this would not amount to serious harm pursuant to s.36(2A) of the Act.
Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

The applicant was represented before this Court by Mr Ashok Kumar, of counsel.
The applicant confirmed that he relied on the grounds contained in an amended application filed on 8 October 2013 as follows:
“Ground 1
The Tribunal committed jurisdictional error when it failed to consider the Applicant’s membership of a particular social group (CB 129.8), a Convention nexus specifically claimed by the Applicant.
Particulars
The Tribunal did not address Convention nexus of a particular social group. The Applicant claimed to have membership of a particular social group with attributes such young Tamil men from East or North of Sri Lanka who left illegally (RRT decision, p2 at [4]). The Tribunal failed to define and assess this particular group instead proceeded to make assessment of illegally departed Sri Lankans returning to Sri Lanka and/or failed to address whether persons of these attributes would be subject to serious significant harm (such as assessing young Tamil male (RRT decision, p4 at [13]; general assessment – RRT decision p12 at [41]) and/or completely ignored the youth attribute of such a group.
Ground 2
The Tribunal committed jurisdictional error when it denied the Applicant procedural fairness.
Particulars
The Applicant was not given opportunity to address the determinative findings of the Tribunal (RRT decision, p 11 at [39] to [40]) and thereby denied procedural fairness.
Ground 3
The Tribunal committed jurisdictional error when it failed to apply the correct test in respect of the level of harm to constitute harm for the purposes of s.36(2A) of the Act; conflating the determination of significant harm with the issue of serious harm as per s.36(2) of the Act.
Particulars
The Tribunal directed itself to the level of harm (RRT decision p11 at [40] and erroneous conflated this as satisfying the “significant harm” test when making assessment and made same finding at (RRT decision p 14 at [51]). The Tribunal thereby erred by applying the wrong test and/or failing to carrying out the test required under the Act.
Ground 4
The Tribunal committed jurisdictional error when it failed to address the facts regarding complementary protection for the purposes of s.36(2)(aa) of the Act; conflating the determination with the same finding in respect of protection visa application.
Particulars
The Tribunal did not address of finding regarding complementary protection conflating its findings in respect of the protection visa.”

Ground 1

Ground 1 asserts that the RRT failed to consider the applicant’s claim to be a member of a particular social group and failed to consider the existence of any Convention nexus with that particular social group. The social group identified by Mr Kumar, in his written submissions, to includes the following characteristics:
i)Sri Lankans;
ii)Young males;
iii)From East/North
iv)Tamil ethnicity;
v)Persons likely to be perceived or are suspected of having some allegiance to the LTTE or former LTTE controlled areas;
vi)Left the country illegally/without documents;
vii)Possibly holding views opposed to their treatment of by the government of Sri Lanka.
In his statement of claims in support of his protection visa application, the applicant made the following answers to the questions referred to below:
“What I fear may happen to me if I return to that country and why
18. I fear for my life should I be returned to Sri Lanka as I fear that I will be targeted by the Navy and the Army under suspicion that I have links with the LTTE. I remember what happened in my village after I have returned from India and how the young Tamil males were rounded up and taken away for this reason. I also fear due to the recent events in my village.
Who I think may harm/mistreat me in that country and why.
19. I fear that I will be at risk by the hands of the Navy and the Army and also the EPDP and the Karuna Groups who are now again active in my village. They suspect people who do not support them to still have links with the LTTE.”

The applicant also stated that he feared that the government of Sri Lanka would not protect him because of their fear of the LTTE.
In the applicant’s interview with the Department, the applicant stated that he does not have any cultural or religious considerations that the Department should be aware of and that he has “No worries” from Hindus. In answer to the question, “Are there any other issues concerning you at this time?” the applicant answered “No”.
In relation to the question as to whether the applicant may have suffered torture and/or trauma, the applicant stated that he was “bashed by the Army”, that he is aware of the services offered to him and that he does not wish to be referred by the Department for further assistance in relation to dealing with particular issues.
In answer to the question why was he seeking Australia’s protection, the applicant answered that it was because of the “round up” carried out by the Sri Lankan Army and that he is afraid.
On 30 August 2012, the applicant’s migration agent provided a submission to the Department in support of the applicant’s claims. That submission made the following claims on behalf of the applicant:
i)The applicant fears persecution because the Sri Lankan government security agencies and affiliated paramilitary organisations suspect that he is linked with the LTTE.
ii)The applicant fears that he will be of special interest to the Sri Lankan security forces due to the fact that he fled from Sri Lanka on two occasions on suspicion that he has strong links with the LTTE based on the facts that he lived in Trincomalee, a North-Eastern province and former LTTE controlled area.
iii)The applicant fears that he does not have the freedom to live in any other place in Sri Lanka due to being born in Trincomalee District, because he will be suspected of having links with the LTTE.
iv)The applicant fears that the LTTE has established a stronghold in Mutur (between Trincomalee and Batticaloa) and therefore fears that he will always suffer under suspicion of having links with the LTTE as soon as he is required to present his national identification card, which clearly states where he is from.
v)The applicant fears that he will become the subject of a series of roundups by the EPDP and the CID in his area.
vi)The applicant fled Sri Lanka illegally and fears that he will be intercepted on return to Sri Lanka and accused of supporting the LTTE and consequently being seriously mistreated.
All of those claims by the applicant are based on the Convention ground of a political opinion imputed to the applicant that he is a LTTE supporter because he comes from Trincomalee. The submission stated that the Convention link was because of the applicant’s:
a)Tamil race;
b)membership of particular social groups comprising Sri Lankan Tamils and Tamils from North-Eastern Sri Lanka;
c)real and imputed political opinion arising from his race and his former residence in a predominantly Tamil region; and
d)failed claims for asylum in Australia and also in the United Kingdom.
The applicant maintained those claims before the Delegate. The Delegate found that the applicant’s claims were inextricably linked to the political opinion that has historically been attached to Tamils in Sri Lanka, making it important to assess what happens to such persons if they return after failing in an asylum bid. The Delegate found that it was not necessary to consider a specific social group when race and political opinion overarched all of those grounds.
The solicitor for the first respondent, Mr Markus, submitted that the approach by the Delegate was a sensible approach in that if one does not accept that the applicant would be imputed with a political opinion because he was from a particular area in Sri Lanka, then it does not matter that young Tamil males from a particular area might be a particular social group where the applicant has been found not to have a well-founded fear of persecution by reason of political opinion or imputed political opinion.
The applicant maintained his claims before the RRT and the RRT found his express claims to be as follows:
“His express claims and those arising on the evidence are that he faces serious and/or significant harm in Sri Lanka because of his: Tamil ethnicity; his political opinions and his imputed political opinions; and/or his membership of particular social groups characterised by his representatives as “Tamils in Sri Lanka”, “Young Tamil men in the East or North of Sri Lanka”, “people suspected or accused of being members of, associating with or supporting the LTTE”; and/or people who have fled Sri Lanka illegally and who will be interrogated and accused of supporting the LTTE.”
The RRT found that, while the applicant had exaggerated aspects of the claimed “round up” in October 2007, the RRT accepted that it took place. However, the RRT was not satisfied that the applicant’s personal identifiers, such as his name or identity details, were taken by the authorities on that occasion or that he was physically harmed. The RRT was also not satisfied the applicant maintained or currently holds an ongoing adverse profile with the Sri Lankan authorities in connection with the “round up” in 2007 or his illegal travel to India in 2006. The RRT noted the applicant’s evidence that no paramilitary group had ever approached him in the past and that his family members continued to live in their home without harm.
The RRT found the applicant’s experiences in 2009 whilst working at the petrol station were as a result of criminal behaviour and did not have a Convention nexus. The RRT was also not satisfied that the applicant’s experiences during his employment at the petrol station, until January 2009, gave him any ongoing adverse profile or suggested that there was a real chance of serious harm or significant harm for the applicant in the reasonably foreseeable future if he was to return to Sri Lanka.
The RRT found the applicant’s claim to have been beaten in his father’s store in early 2009 to be “vague”. The RRT further found that, on the applicant’s own evidence, those experiences did not reveal any further ongoing harm or adverse attention between the end of the war in May 2009 and the applicant’s departure from Sri Lanka to Australia in 2012.
The RRT concluded that the applicant was not a target for any type of harm in Sri Lanka at the time he departed for Australia from any agent of the Sri Lankan authorities or any paramilitary entity. The RRT was also not satisfied that the applicant had any adverse profile in Sri Lanka at the time he left for Australia in 2012 or that he faced a real chance of serious or significant harm in Sri Lanka at that time.
Having found that the applicant did not have an adverse profile at the time he left Sri Lanka for Australia, the RRT noted that it must also consider the applicant’s risk of harm in Sri Lanka in the reasonably foreseeable future. The RRT identified as relevant to those considerations, whether the applicant was at risk of harm by reason of being a Tamil from Tricomalee who may be imputed with a link to the LTTE.
However, the RRT found that the applicant’s evidence in its totality and cumulatively did not reveal the applicant, or any members of his family remaining in Sri Lanka, to have experienced any serious or significant harm since the end of the war in 2009 by reason of their Tamil ethnicity or for being Tamils from Tricomalee. Nor was the RRT satisfied that those factors indicated that any of them had ever been accused of being LTTE supporters.
In reaching those conclusions, the RRT noted the 2010 and 2012 UNHCR Guidelines, which removed any presumption of collectively based international protection simply for reason of being a Tamil, or being a Tamil from an area formerly under LTTE control. In the applicant’s circumstances, the RRT found that being of Tamil ethnicity, or being a Tamil male who has lived and worked in Tricomalee does not give rise to a risk of harm amounting to serious harm in the reasonably foreseeable future. Nor was the RRT satisfied that the applicant, being a Tamil male from Tricomalee would be imputed with any political opinion linked to, or in support of, the LTTE or opposed to the Sri Lankan authorities.
The RRT also considered whether the applicant would be imputed with a political opinion linked to the LTTE or opposed to the Sri Lankan government. The RRT considered the factors that may give rise to a political opinion were the fact that the applicant was a Tamil male from the East who had illegally departed from Sri Lanka and who was a failed asylum seeker. The RRT also considered whether the applicant’s claim to have had a heightened risk of harm of being imputed with pro-LTTE political opinions because he has two brothers in the United Kingdom and a cousin who disappeared during the war.
However, the RRT found that the applicant’s evidence did not reveal that he or his family members who remained in Sri Lanka had even been questioned in connection with either of those factors.
In relation to the cousin’s disappearance, the RRT found the applicant’s evidence to reveal that since the cousin’s disappearance the applicant has travelled to India from Sri Lanka and back legally and without difficulty and had passed through multiple checkpoints between Tricomalee and Colombo without difficulty.
The RRT found that the applicant would not be imputed with a political opinion in the reasonably foreseeable future in connection with his cousin’s disappearance or his sibling’s residence in the United Kingdom. The RRT found such claims to be highly speculative, even within the context of what is cumulatively accepted as the applicant’s circumstances in Sri Lanka now and in the reasonably foreseeable future. The RRT made a finding in the following terms:
“On the basis of all the evidence before it, including cumulatively, the Tribunal is not satisfied that the applicant has been or will be in the reasonably foreseeable future, imputed with any political opinions in support of or linked to the LTTE or opposed to the Sri Lankan government which would give rise to a real chance of serious harm in Sri Lanka in the reasonably foreseeable future.”
In relation to whether the applicant was at a foreseeable risk of harm by reason of his illegal departure and being a failed asylum seeker, the RRT had regard to particular country information which it identified with specificity. The RRT accepted that as a returnee to Sri Lanka in such circumstances, the applicant would go through a process, including interview and questioning. However, the RRT was not satisfied on the evidence before it that this would reveal the applicant to have any adverse profile in Sri Lanka. The RRT found that on the evidence before it, treatment faced by failed Sri Lankan returnees does not involve a real chance of persecution or serious harm or give rise to a real chance of serious harm in the reasonably foreseeable future, even when assessed cumulatively with what the RRT accepted of the applicant’s personal profile and circumstances in Sri Lanka. The RRT also found that it was not satisfied that the process involved or gave rise to differential treatment for a Convention reason.
In relation to the applicant’s illegal departure from Sri Lanka, the RRT considered whether the applicant faced a real chance of serious harm as a member of the particular social group consisting of those who have left Sri Lanka in breach of the country’s immigration law. However, again the RRT was not satisfied that the treatment faced by Sri Lankan returnees who have departed Sri Lanka unlawfully amounts to persecution amounting to serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with the applicant’s personal profile and circumstances in Sri Lanka. The RRT was also not satisfied that the process involved or gave rise to differential treatment for a Convention reason.
In relation to the applicant’s claim of a fear of abduction on return to Sri Lanka, the RRT was not satisfied that the applicant faced a real chance of abduction by any person or group in Sri Lanka in the reasonably foreseeable future. The RRT noted that the applicant did not identify any reason why he would be targeted for harm or abduction as a young Tamil male living in an area which is predominantly male and in which many young Tamil men live without harm.
A fair reading of the RRT’s decision record makes clear that any claim of a fear of harm by reason of being a member of a particular social group was confined to social groups comprising Sri Lankan Tamils and Tamils from North-East Sri Lanka, as referred to in para 51 above in the applicant’s migration agent in its submission dated 30 August 2012. That claim was clearly considered by the RRT.
The overarching claim by the applicant was one of a fear of persecution by reason of being imputed with a political opinion of support for the LTTE by reason of being a Tamil from Tricomalee whose fear is exacerbated because he has made failed asylum claims. There was no other clearly articulated claim that arose before the RRT on the evidence and material before it and which it had failed to consider and determine (see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263).
The RRT accepted that the applicant would be questioned by Sri Lankan authorities at the airport on his return, and that background checks would involve consultation with local police authorities. However, the RRT was not satisfied that the applicant has any adverse profile that would be revealed throughout that process.
The RRT’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, ground 1 is not made out.

Ground 2

Ground 2 asserts that the RRT denied the applicant procedural fairness because he was not given an opportunity to address the RRT’s findings about what may happen to the applicant as a returnee to Sri Lanka including as a failed asylum seeker who left Sri Lanka illegally, and the country information upon which the RRT relied in rejecting the applicant’s claim of a fear of harm on that basis.
The case referred to and relied upon by the applicant, MZYRD v Minister for Immigration (2012) FCA 830 at 50, in support of ground 2 is a case that related to judicial review of an independent merits review where the ordinary common law notions of procedural fairness apply.
Section 422B of the Act states that Part 7 Division 4 of the Act is an exhaustive statement of the natural justice hearing rule. Part 7 Division 4 does not include all common law principles relevant to procedural fairness. Section 424A(1) of the Act obliges the RRT to give to the applicant for comment information that may be the reason for affirming the decision under review. Section 424A(3)(a) excludes from the obligation in s.424A(1) information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.
The country information to which the RRT had regard was country information that was not specifically about the applicant or another person and was just about a class of persons of which the applicant claims to be a member. That information is therefore excluded from the obligation in s.424A(1) of the Act pursuant to s.424A(3)(a) of the Act. The RRT, accordingly, was not required to give that information to the applicant for comment.
Otherwise, it is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
There is no other evidence before this Court or further submission made by the applicant to suggest that Part 7 Division 4 of the Act was not complied with and none is apparent on the face of the RRT’s decision record.
To the extent that ground 2 also asserts that the RRT did not properly consider the applicant’s claim to fear harm by reason of the disappearance of the applicant’s cousin, the RRT’s decision record makes clear that it understood that an integer of the applicant’s claim related to the fact that he had two brothers in the United Kingdom and a cousin who he asserted had been kidnapped. It is clear from these reasons above that the RRT considered the suggestion that any political opinion would be imputed to the applicant in the reasonably foreseeable future in connection with his cousin’s disappearance was “highly speculative” now and in the reasonably foreseeable future, even in the context of what the RRT cumulatively accepted of the applicant’s circumstances.
As stated above, the RRT noted that the applicant’s evidence was that despite his cousin’s disappearance, he had travelled from Sri Lanka to India and back legally and without difficulty and had passed through multiple checkpoints between Tricomalee and Colombo without difficulty.
Those findings were open to the RRT on the evidence and materials before it and for the reasons it gave.
In the circumstances, there was no obligation on the RRT further to consider the applicant’s claims in the light of his cousin’s claimed disappearance.
Accordingly, ground 2 is not made out.

Ground 3

Ground 3 was not pressed

Ground 4

Ground 4 asserts that the RRT failed to properly address the facts regarding complementary protection for the purposes of s.36(2)(aa).
The applicant contended that the RRT did not separately consider the issue of real risk that would flow to the applicant in Sri Lanka arising from the disappearance of the applicant’s cousin.
However, a fair reading of the applicant’s claims, including submissions by his migration agent and evidence given at the RRT hearing, does not suggest that the applicant had a separate claim of a fear of harm due to the disappearance of his cousin, other than as part of his Convention claims. The applicant’s evidence was that the harm to his cousin was for a Convention reason and that his cousin was taken in a “round up” by the Sri Lankan Army. This evidence was clearly put forward as part of the applicant’s Convention claims. However, as stated above, the RRT did not accept that the disappearance of the applicant’s cousin was a basis for the applicant now to fear either serious or significant harm.
As stated above, the RRT’s findings in this respect were open to it on the evidence and material before it and for the reason it gave.
In considering complementary protection, the RRT referred to all the evidence and material before it, including:
a)submissions;
b)what the RRT accepted in respect of the applicant’s claimed circumstances;
c)the independent country information in relation to failed asylum seekers returning, having departed illegally; and
d)the RRT’s concerns in relation to the reliability and detail of reports of harm faced by returnees to Sri Lanka, including failed asylum seekers, and the limited insight such reports provide what awaits a person in the applicant’s circumstances.
The RRT was not satisfied that there are substantial grounds for believing that the applicant faces a real risk of significant harm in the reasonably foreseeable future in connection with his failed application for asylum or for any reason arising on the evidence.
The RRT identified those matters that it accepted in the applicant’s claims. In particular, that the applicant left Sri Lanka illegally and will be questioned by the Sri Lankan authorities at the airport in consultation with the local police authorities upon his return. The RRT accepted that whilst the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant, returnees are only reported to be held in remand, if they illegally departed Sri Lanka, for a short duration of a few days before being brought before a court to apply for bail, which is routinely given.

The RRT found that the weight of country information indicated that the applicant would be subject to a fine, but not a custodial sentence for his illegal departure from Sri Lanka and that the prospect of the applicant being detained for a prolonged period of time was remote.
The RRT noted that there had been no reporting of returnees being exposed to acts or omissions amounting to significant harm. In particular, there were no reports of returnees being arbitrarily deprived of their life or the death penalty being carried out upon them, or being subjected to mistreatment including intentional mistreatment involving torture or cruel intentional treatment or punishment or extreme humiliation amounting to significant harm as contemplated by s.36(2A) of the Act.
The RRT’s decision record makes clear that the RRT considered in particular whether the applicant, being a failed Tamil asylum seeker who left Sri Lanka illegally, with no claimed risk profile, was at real risk of harm amounting to significant harm as contemplated by s.36(2A) of the Act.
It is clear from the RRT’s findings and reasons in considering complementary protection, that the RRT applied the proper test in considering whether the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
In the circumstances, the RRT’s conclusion that the applicant did not meet either the refugee criterion in s.36(2)(a) of the Act, or, the alternative criterion in s.36(2)(aa) of the Act was open to it and made without error.
Accordingly, ground 4 is not made out.

Conclusion

A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material, including submissions, provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.
The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 2 June 2014