SZSZS v Minister for Immigration
[2014] FCCA 2334
•21 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSZS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2334 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 474 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Repatriation Commission v Thompson (1988) 82 ALR 352 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 |
| Applicant: | SZSZS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1436 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 30 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Tamil interpreter. |
| Solicitors for the First Respondent: | Ms M Stone of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The application filed on 20 June 2013 and amended on 24 April 2014 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSZS.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1436 of 2013
| SZSZS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in the Federal Circuit Court on 26 June 2013 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”) seeking relief in the form of constitutional writs against the decision of the Refugee Review Tribunal (the “Tribunal”) dated 28 May 2013. The Tribunal affirmed a decision by a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
The solicitors for the first respondent, the Minister for Immigration and Border Protection (at the time of the decision the Minister for Immigration, Multicultural Affairs and Citizenship) (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
The applicant was granted leave to file and serve an amended application and any evidence he wished to rely upon on or before 18 February 2014. The applicant was also granted leave to file and serve a short written outline of submissions and list of authorities fourteen days before the final hearing. The applicant filed an amended application on 24 April 2014. Leave was granted at the hearing for the applicant to rely on the amended application, despite it being filed out of time.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a male citizen of Sri Lanka born on 26 August 1986 (CB 25). He arrived in Australia as an unauthorised maritime arrival on 17 May 2012 (CB 104).
The applicant applied for a Protection (Class XA) visa on 25 August 2012 (CB 39). The applicant's claims were set out in a statement and in written submissions prepared by his migration agent accompanying the application (CB 28-38 and 91-93). His protection claims stated that:
a)The applicant claimed to fear harm in a Sri Lanka due to his Tamil ethnicity and imputed political opinion in favour of the Liberation Tamil Tigers of Eelam (the “LTTE”). The applicant claimed that his brother had been shot in 2005 by unknown persons and that he feared the same thing could happen to him;
b)The applicant also claimed to fear harm as the result of his political activities for the Tamil National Alliance (the “TNA”) and for a Member of Parliament named Yogeswaran who the applicant claimed was related to his wife. The applicant claimed to have been threatened in 2010 due to his political activities, and that armed men had been to his house looking for him; and
c)Finally, the applicant claimed to fear harm upon his return to Sri Lanka due to his illegal departure, and as a failed asylum seeker.
The applicant’s Protection visa application was refused by a delegate of the Minister on 22 October 2012 (CB 103-113).
The applicant applied to the Tribunal for review of the delegate's decision on 26 October 2012 (CB 114-137).
The applicant's migration agent provided written submissions to the Tribunal on 8 January 2013 (CB 150-200), which attached a written statement from the applicant (CB 201-203).
The applicant appeared at a hearing before the Tribunal on 25 January 2013, at which his migration agent was present (CB 215-216).
The applicant's migration agent provided further written submissions to the Tribunal on 8 February 2014 (CB 218-228). The submissions enclosed a letter purporting to be from MP Yogeswaran (CB 220-222) and a photograph, which the applicant claimed depicted him standing next to MP Yogeswaran (CB 223).
The Tribunal made its decision on 28 May 2013, affirming the delegate’s decision not to grant the applicant a Protection (Class XA) visa (CB 232-271).
Tribunal’s Decision
The Tribunal found on the basis of the applicant's evidence at the hearing before it that he did not fear harm due to the shooting of his brother. Rather, the applicant feared that the same thing could happen to him because of his work with the TNA, association with MP Yogeswaran and ethnicity as a Tamil (CB 257 at [127]-[128]). The Tribunal did not accept that the applicant's brother was of interest to anyone in Sri Lanka because of a link to the LTTE (CB 257 at [129]). The Tribunal concluded that the applicant would not be harmed as a result of his brother's shooting or his relationship to his brother (CB 258 at [130]).
The Tribunal did not accept that the applicant had ever been involved in the TNA or that he had ever worked with or was associated with MP Yogeswaran (CB 258-259 at [133] and CB 260 at [136]). The Tribunal found on the basis of a number of concerns with the applicant's evidence that he was not a witness of the truth with regards to these claims and that he had fabricated his evidence. Particularly:
a)The Tribunal considered the letter purportedly prepared by MP Yogeswaran and found that the applicant's credibility was so weakened that it could not be satisfied with this evidence and accordingly gave it no weight (CB 261 at [141]); and
b)The Tribunal expressed a concern that the photograph had been digitally altered (photo-shopped), but found that even if it were wrong about this it did not accept the photograph as evidence of the claimed relationship between the applicant and MP Yogeswaran. The Tribunal placed no weight on the photograph (CB 261 at [142]).
The Tribunal accepted that the applicant was ethnically Tamil, but on the basis of country information did not accept that he would be harmed for this reason or because he would be imputed with a political opinion in favour of the LTTE (CB 262-263 at [143]-[151]).
The Tribunal accepted that the applicant had departed Sri Lanka illegally and that he would be interviewed at the airport upon his return to Sri Lanka. The Tribunal was not satisfied that this would result in any serious harm befalling the applicant (CB 266-267 at [162]-[166]).
The Tribunal accepted that the applicant was likely to be arrested at the airport for breaching the law on immigration and emigration, and that bail is routinely given on the accused's own recognisance. Although this may involve being detained for some days before the bail hearing in overcrowded conditions there had been no reports of persons awaiting bail hearings being subjected to torture or other forms of deliberate mistreatment. The Tribunal found that the penalty eventually imposed on returnees have involved fines and that the weight of the country information indicated that the applicant would be subject to a fine, but not to a custodial sentence. On the basis of these findings, the Tribunal was not satisfied that the treatment which the applicant would face amounted to serious harm (CB 268 at [171]) or significant harm (CB 269-270 at [178]-[179]).
Legislative framework
The decision of the Tribunal in the present case is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 operates to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error.
Current Proceedings
The application before this Court was first filed 26 June 2013 and amended on 24 April 2014. Leave was granted for the amended application to be relied upon at the hearing. The orders sought in the Amended Application are as follows:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
3. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.
The Grounds of the original application are as follows:
1. RRT erred in law with the error being a jurisdictional error in that it failed to constructively exercise its jurisdiction by finding that the applicant is a refugee within the terms of the refugees Convention.
Particulars
There was evidence that persons like the applicant were targeted for their work for the TNA and the second respondent did not consider that information.
2. RRT erred in law with the error being a jurisdictional error.
Particulars
All evidence available pointed to the fact that persons like the applicant were persecuted by the Sri Lankan authorities but the second respondent came to a different conclusion.
The grounds in the amended application appear to be in the form of submissions in response to the Minister’s submissions and state as follows:
1. I have given evidence to show that I worked for the TNA and there is evidence to show that other people worked for the TNA have been targeted.
2. Although all of the country information does not support my case there is some country information to support my case that as a Tamil from the Eastern province of Sri Lanka and as a failed asylum seekers would be persecuted in arrival.
Therefore, the RRT erred in law by failing to exercise its power on the grounds one and two stated in my court application.
As the grounds of the amended application appear to have been prepared in the form of written submissions, they shall be treated as such.
Applicant’s Submissions
The applicant did not file any express written submissions (see [22] above). At the hearing, the applicant stated that he wished to make oral submissions. The applicant argued that the Tribunal Member did not believe that he had worked for the TNA, despite having submitting evidence, including photos. He stated that he would like another opportunity to go back before the Tribunal and prove that he did work for the TNA. The applicant stated that he had a number of newspaper articles with him that he would like to submit to the Tribunal.
It was explained to the applicant that the purpose of the current Court hearing was to determine whether the Tribunal abided by the Migration Act and by the Migration Regulations 1994 (Cth), and to decide if there had been any error of law in the Tribunal’s decision. The applicant was informed that the Court could only consider material that was before the Tribunal and could not accept new material in support of the applicant’s substantive protection claims.
The applicant indicated that he understood and continued to iterate that he had worked for the TNA. He stated that the TNA MP, presumably MP Yogeswaran, had visited the applicant whilst he has been in Australia and that there was a news article published back in Sri Lanka. He claimed that he fears his life is at risk.
The Court asked the applicant whether he had had the opportunity to have the Minister’s written submissions translated to him. He confirmed that they had been and he wished to comment upon them. The applicant argued that the Tribunal mentioned in their decision that the photograph that was taken with the MP was not a real photograph. The applicant requested that he be given the opportunity to prove that the photograph is real. Initially there was some confusion as to which photograph the applicant was referring to. It was established that there were two photographs that had been referred to, the first being when an MP from Sri Lanka visited the applicant and the second being another politician and the applicant in Sri Lanka. The latter photo is the one that the applicant referred to and is the photograph that the Tribunal suggested may have been photo-shopped. The applicant claimed that the photograph looked the way that it did because he had ‘blown’ it up and enlarged the original photograph. The applicant claimed that he had offered to show the Tribunal the photograph on his mobile phone, but that the Tribunal had not allowed him to show it.
Minister’s Submissions
The Minister contends the first ground of the original application asserts that the Tribunal failed to consider information which showed that other people who worked for the TNA had been targeted. However, the Tribunal did not accept that the applicant had ever worked for the TNA as claimed. The Minister submits that it was therefore not relevant to the Tribunal's consideration that other people who had worked for the TNA had been targeted. This ground cannot establish any jurisdictional error on the part of the Tribunal.
The second ground asserts that the Tribunal erred because all evidence available pointed to the fact that people 'like the applicant' were persecuted. The Tribunal relied upon country information to reach its conclusions regarding the applicant's claims to fear harm as a Tamil and as a failed asylum seeker. In both instances, the Tribunal noted that there were a number of views expressed in the country information, and gave reasons for coming to the conclusion that it did. It is not the case that all of the country information gave the same opinion, being an opinion that Tamils and failed asylum seekers were at a risk of harm. It is not the case that all of the country information supported the view that the applicant would be harmed upon his return to Sri Lanka. Therefore, this ground cannot be made out, and goes no higher than to seek impermissible merits review of the Tribunal's conclusions.
At the hearing, Ms Stone, appearing for the Minister, took the Court to CB 223 where the photograph in question had been attached to an email sent on 8 February 2013 to the Tribunal, along with post-hearing submissions. Ms Stone submits that the Tribunal hearing was held on 25 January 2013 and as such the photograph would not have been before the Tribunal at the time of the hearing. Ms Stone took the Court to the Decision Record where the Tribunal states:
68. I noted that at the hearing I had asked which party Yogeswaran MP belonged to and he had said the Tamil National Alliance and that he did not know the particular part as the TNA is an alliance of parties. I noted that independent information indicates that Yogeswaran is a member of the Illankai Tamil Arasu Kachchi (ITAK) party, which is part of the TNA. I noted the information is relevant as I may expect that if he worked with Yogeswaran in the TNA in the nanner (sic) he claims and for the length he claims, and was a relative of his and had the relationship he claims that he would know the party he belonged to. I stated that this may lead me to find he did not work with the TNA, or for Yogeswaran or was involved with him in any manner whatsoever. I suggested that it may lead me to find he is not a witness of truth and not entitled to refugee protection or complementary protection on this basis. The applicant indicated he could get documents to show that he was a relative and that he worked for him.
69. I noted that information indicates that there is a high rate of document fraud in Sri Lanka and it my lead me to question the genuine nature of such documents.
(CB 243)
Ms Stone submits that the Tribunal put to the applicant its concerns that he may not be a member of the TNA and that he may not have worked for the MP. Ms Stone contends that at [70]-[73] of the Court Book the Tribunal went on to outline further concerns with the applicant’s evidence about his membership of the TNA. The Tribunal stated at [70]-[73] of the Decision Record:
70. I noted information before me indicates that he has been inconsistent as to his work with the TNA, his length of time with them and what he did for them; in his evidence given to the Department and the Tribunal I noted that he had advised me at the hearing that he had worked at the TNA from 2010 until he left Sri Lanka. I noted that in his statement at point 11, he indicated that has stopped working with the TNA in March 2010. I noted at the Department interview he was asked whether he was still working for the TNA before he left Sri Lanka and he replied that at the last election he stopped working for them, on 8 April 2010.
71. I suggested that the information is relevant as I may expect if he worked and was involved in the TNA in the manner he claims he would be consistent as to how long he worked for them in Sri Lanka. I suggested this may lead me to find that he did work for them in the manner he claims and is not entitled to refugee or complementary protection because of his work with the TNA as he did not work for them. He responded that he did work for them and it is true and he was a relative of Yogeswaran. He said did not work for them full-time as he was also doing his own work and he would be able to prove it with documents.
72. I referred to point 7 of his statement in which he stated that he was not a member of the TNA that he worked for them as he was hoping he could get a job with the Government and he said he did not join the TNA because he was not interested in politics but wanted a better job. I suggested this was inconsistent to what he had stated at the hearing before me about his political involvement and why he was involved. I suggested the inconsistency is relevant as it may lead me to find he is not political and is not credible as to his involvement with the TNA. He responded that in his statement he worked to get a job but he also wanted to work with them.
73. I noted that he had provided inconsistent evidence between the Department interview and at the hearing before me as to how he is related to Yogeswaran. I noted at the hearing before me he said Yogeswaran was his wife’s father’s brother’s son; whereas at the Department interview he said Yogeswaran was his wife’s mother’s elder brother. I suggested the information is relevant as I may expect if he was related to Yogeswaran and worked closely with him in the TNA in the manner he claims, that he would be consistent as to how he is related to him. I suggested that it may lead me to find he is not a witness of truth as to being elated to Yogeswaran through his wife and that he is not in need of protection, either refugee or complementary, because of this relationship.
(CB 243)
Ms Stone submits that at [75] the applicant was clearly put on notice that the Tribunal might find that he was not a member of the TNA and that he had not been a witness of truth:
75. I noted that is his statement and at the Department interview he said that he was involved with the TNA by placing posters up before the 2010 election yet I noted that at the hearing before me he had given a different account as to what he did with the TNA and had stated he also attended meetings, was involved in publicity and was closely associated with Yogeswaran and the TNA party. I suggested the information may lead me to find he was never involved with the TNA and not sought out by any one because of his work with the TNA and not in need of protection because of his work with the TNA as I may expect he would be consistent as to his work with them, if he had worked with them in the manner he claims. I suggested he may not be a witness of truth in this regard.
(CB 244)
Ms Stone submits that the Decision Record does not mention that the applicant had stated that he had the above-mentioned photograph either in hardcopy or on his telephone. Ms Stone argues that to the extent that the applicant is suggesting that he tried to present evidence and was not allowed to do so should be rejected. Ms Stone submitted that the only evidence of what occurred at the Tribunal hearing is the Decision Record and that the Court should accept the evidence in the absence of a transcript of the Tribunal hearing.
Ms Stone contends that the applicant mentioned that he visited with the MP when the MP visited Australia. Ms Stone argued that it was her understanding that this meeting occurred after the Tribunal hearing had taken place. She argues that it was not a matter which was raised before the Tribunal and therefore is not something which could have been considered by the Tribunal.
Consideration
The applicant appeared before the Court as a self-represented litigant, with the assistance of a Tamil interpreter. The applicant also sought to rely on an amended application filed by him on 24 April 2014, a course which was not opposed by the Minister’s representative. However, on further examination of the amended application, it appears the grounds contained therein are actually written submissions in support of the original application, and will be treated as such.
I first turn to Ground 1 of the application. This ground complains that the Tribunal failed to take into account that the applicant and people like the applicant were targeted as a result of their work for the TNA. The applicant claims this was an error, particularly on the basis that the applicant provided evidence he worked for the TNA.
The Full Federal Court stated per curiam in Repatriation Commission v Thompson (1988) 82 ALR 352 at 357:
… [I]t is necessary to keep in mind that the tribunal was the judge of the facts. As Brennan J said in Waterford v Commonwealth (1987) 163 CLR 54 at 77 ; 71 ALR 673 at 689: “The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error in law simply in making a wrong finding of fact.” The distinction between fact and law has recently been considered by Gummow J in TNT Skypak International (Aust) Pty Ltd v FCT (Federal Court, G621 of 1986, delivered 20 April 1988, unreported) and by Spender J in FCT v Noume (1988) 88 ATC 4217. In marginal cases, the task of distinguishing between an error of law and an error which is not such may be a difficult one. However, the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.
The Tribunal found at [137] of the Decision Record (CB 260) that the applicant had not worked for the TNA and had fabricated his evidence in relation to his claimed employment with the TNA. These findings were open to the Tribunal on the evidence before it and it is not for this Court to cavil with those findings.
The Tribunal’s made findings in respect of all the evidence submitted by the applicant and these findings were open to it on the evidence before it. Accordingly, any claim that the Tribunal failed to consider evidence before it cannot be sustained. The applicant’s submissions disagree with the findings made by the Tribunal and invite the Court to engage in impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Consequently, Ground One of the application cannot succeed and should be dismissed.
Ground Two of the application has been clarified by the applicant in his written submissions. It complains that there was country information before the Tribunal before it supporting the proposition that “persons like the applicant”, “Tamil[s] from the Eastern province of Sri Lanka” of “failed asylum seekers” would be persecuted on arrival in Sri Lanka. The applicant has acknowledged that there was also country information before the Tribunal that did not support his claim.
At the hearing, the applicant did not seek to expand on this ground in oral submissions.
The Tribunal considered the independent country information before it at [100]-[122] of the Decision Record (CB 248-256). It then went on to make findings based on that country information under the headings Race, Imputed Political Opinion and membership of a particular social groups at [143]-[151] (CB 261-263) and Membership of particular Social groups – Departing Illegally and Applying for Asylum at [152]-[172] (CB 263-268).
It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29). I accept the Minister’s submissions, noted above at [28], accurately address this ground.
Consequently, this ground must also fail and should be dismissed.
I now turn to the oral submissions made by the applicant at the hearing. The applicant takes issue with a number of the Tribunal’s findings and again seeks to engage the Court in impermissible merits review. He further seeks to reiterate his substantive protection claims, however, it was explained to the applicant that the function of this Court is to review the decision of the Tribunal to ascertain whether there has been an error of law, not to decide whether the applicant should receive a Protection visa.
The applicant also made submissions in respect of a photo he sought to submit as evidence in support of his Protection visa claim before the Tribunal, initially on his phone at the hearing, then attached to his post-hearing submissions. The Tribunal noted a photo had been submitted after the hearing at [98] of the Decision Record (CB 248), then made its findings in respect of that photo at [142] of the Decision Record (CB 261). These findings were open to the Tribunal on the material before it and the applicant again seeks to engage the Court in impermissible merits review. Accordingly, this submission cannot be sustained. Further, on review of the Decision Record and Court Book, no evidence of any other photo submitted or sought to be submitted by the applicant in support of his claims is apparent. I find that the photo referred to by the applicant is the photo found at CB 223 and otherwise agree with the Minister’s submission noted above at [29]-[32].
I have undertaken a fair reading of the Court Book and Decision Record, and no error by the Tribunal is apparent.
Accordingly, the application cannot succeed and should be dismissed with costs awarded to the Minister.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 21 October 2014
0
5
2