SZTBF v Minister for Immigration
[2014] FCCA 903
•22 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTBF v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 903 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – Applicant not a credible witness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2B), 36(2), 36(2)(a), 36(2)(a)(a), 46A(2), 424A, 424AA 1951 Convention Relating to the Status of Refugees |
| SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 |
| Applicant: | SZTBF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1596 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 22 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 22 April 2014 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Priest |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The Application filed 15 July 2013 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
SYG 1596 of 2013
| SZTBF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
These proceedings commenced on 15 July 2013, when the Applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 12 June 2013. The Tribunal affirmed a decision of the First Respondent (‘the Minister’) by his delegate (‘the Delegate’) dated 17 September 2012 not to grant the Applicant a Protection (Class XA) visa. The grounds of the Application are as follows:-
“1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.”
No further particulars have been provided by the Applicant as to the grounds of application. By Response filed 30 July 2013, the First Respondent sought dismissal of the application and costs to follow the event. Paragraph 3 of that Response is as follows:-
“The grounds of the application make unparticularised assertions of error of law and procedural unfairness. The RRT correctly applied the law to the facts as found. No jurisdictional error has been demonstrated, including any failure to comply with the procedural code in Division 4 of Part 7 of the Migration Act 1958 (Cth). The First Respondent opposes all orders sought by the application on the basis that no arguable case for the relief sought is disclosed.”
On 16 October 2013, Registrar Caporale ordered, and by consent, that the Applicant file and serve any amended application, including any additional grounds of review, with complete particulars of each ground, and written submissions prior to the hearing date. The Applicant has failed to comply with those orders, and at no time particularised the grounds of the application, nor provided any written submissions in support of the application. The First Respondent was also required to provide written submissions prior to the final hearing, and did so by the filing of same on 15 April 2014. The Applicant was assisted by an interpreter in the Tamil and English languages on the hearing this day, and the First Respondent’s Outline of Submissions filed 15 April 2014 was read to the Applicant, who claimed that he had not read such document before today’s date. His reason for not doing so was his lack of familiarity with the English language.
Background
The Applicant arrived in Australia on 17 May 2012 as an irregular maritime arrival. He was born in Sri Lanka on 1 May 1993, and is now aged 20 years. His religion is Hinduism and his ethnic group Tamil.
The Applicant applied for a Protection (Class XA) visa on 4 August 2012 after the Minister exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (‘the Act’) to allow the application.
At his irregular maritime arrival entry interview, the Applicant was, amongst other questions, asked, why did he leave his country of nationality (country of residence)? The answer, and subsequent questions and answers, were as follows:-
“It is very hard to live in Sri Lanka. My dad is very old. If I come to Australia, I will be able to learn and there are many opportunities for learning.
Q: What else?
A: In Sri Lanka, what we earn could cover only for food. My dad has high blood pressure and high sugar (Diabetes). My mum has to look after him. My elder sister has married and gone.
Q: What else?
A: In Australia, i will be safe. In Sri Lanka, anything could happen anytime.
Q: What could happen anytime in Sri Lanka?
A: I am close to the sea, there could be another Tsunami.
Q: What else could happen?
A: We are Tamils, we could have problems with the Sinhalese people.
Q: What kind of problems?
A: In Sri Lanka, Sinhalese are the ruling community, wherever we go we are in a second position.
Q: What do you mean by we are in the second position?
A: When you apply for jobs, they give priority to the Sinhalese people.
Q: Why do they give priority to the Sinhalese people?
A: Already there was fight between Tamils and Sinhalese, now they take a chance and discriminate against us.
Q: What do you mean by they take a chance and discriminate against us?
A: They give priority to Sinhalese and we are given less and put behind. Even, if I go back there are problems from Sinhalese.
Q: What kinds of problems?
A: If I go back, they will asked why I left Sri Lanka and why I came back to Sri Lanka.
Q: What other problems can you face?
A: they will put me in jail and beat me.
Q: What else?
A: So to get out of the jail, they will ask for ransom. Even if they release you once, they will come back to our place and torture me.
Q: Before this time, Have you ever had problems in Sri Lanka?
A: No.
Q: Do you have any other reasons that made you leave Sri Lanka to come to Australia?
A: Essentially, I came here to learn and because of my house situation.
Q: Do you have anything further to say why you left Sri Lanka to come to Australia?
A: No, that’s all.”
In a subsequent written statement provided with his visa application and with the assistance of his registered migration agent, the Applicant stated that he feared serious harm from authorities and the Sinhalese in his area if he was to return to Sri Lanka, due to his Tamil ethnicity and Hindu religion. This fear was based on the following claims as accurately set out in the First Respondent’s Outline of Submissions filed 15 April 2014 (at paragraph 6):-
a)since he was a child, he had been harassed and verbally abused by Sinhalese families while travelling through neighbouring areas around his village of Udappu;
b)when he was a teenager, he was once stopped by two policemen while he was riding his bike and dragged off by his hair and beaten;
c)more Sinhalese families were moving in to his area and land owned by Tamil’s was being confiscated to give to them;
d)he was once stopped at an army checkpoint and taken to a police station and interrogated because he did not have a pass;
e)he was stopped on a number of occasions at the checkpoint and prevented from fishing;
f)due to an increased number of Sinhalese fishermen in his area and restrictions on his ability to fish, it had become difficult to earn a living;
g)when working at a fish market, he had been harassed by Sinhalese customers and one had slapped him across the face; and
h)after arriving in Australia, his mother had been visited by two men in plain clothes she believed were from the Criminal Investigation Department who had asked whether the Applicant had gone to Australia. Other Tamil families had similar visits.
The Applicant’s claims were thereafter supplemented by his migration agent in correspondence with the Delegate dated 5 September 2012. The migration representative claimed the Applicant faced a real risk of harm if he was returned to Sri Lanka as a failed asylum seeker. Such claims included that he would face a denial of State protection on his return to Sri Lanka, that relocation was not reasonable and that he engaged Australia’s protection obligations for the purposes of s.36(2) of the Act.
In letter of 17 September 2012, the Delegate forwarded to the Applicant notification of refusal of application for a Protection (Class XA) visa, such correspondence attached the Tribunal’s Decision Record of 17 September 2012 (‘the Decision Record’).
On 23 October 2012, the Applicant applied to the Tribunal to review the Delegate’s decision. The Tribunal invited the Applicant to attend a hearing by letter of 21 December 2012. The date of hearing was set out as 31 January 2013. The time and place of hearing was set out in the notice and it was indicated that arrangements had been made for a Tamil interpreter to be present to assist the Applicant.
Tribunal hearing
The Applicant and his migration agent attended the Tribunal hearing via video link on 31 January 2013. On 12 June 2013, the Tribunal affirmed the Delegate’s decision not to grant the Applicant a Protection (Class XA) visa. The Tribunal considered the Applicant’s claims against both the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugees Convention’) criterion in s.36(2)(a) of the Act and the complementary protection criterion in s.36(2)(aa) of the Act. During the course of the hearing, the Tribunal member indicated to the Applicant that she had some concerns with his credibility and wished to put those concerns to the Applicant as they related to his various claims. Those matters were as follows:-
a)given his place of birth was almost entirely populated by Tamils, the Tribunal asked of the Applicant why he faced difficulty as a Tamil in Udappu from the Sinhalese;
b)the Tribunal member had concerns about the Applicant’s credibility and his claims about the risk of harm to Tamils in light of country information to the contrary;
c)the Tribunal member suggested to the Applicant that there was no evidence before her that he had a local police record and asked why there was any reason why the local police would treat him differently when he returned;
d)the Tribunal member suggested to the Applicant that a small number of failed asylum seekers had been detained on their return to Sri Lanka, and that there was information to suggest it was for reasons other than their illegal departure or being a failed asylum seeker from the West; and
e)the Tribunal member suggested to the Applicant that she had difficulty understanding why he would be suspected of being a Liberation Tigers of Tamil Eelam (‘LTTE’) supporter when he had not been targeted or suspected of links with the LTTE and in the 2009 purge of the LTTE, after the end of the war, he had not been targeted.
The Tribunal also put information to the Applicant under s.424AA of the Act, as set out in paragraph 56 of the Decision Record. The Applicant said in submissions before the Court this day, that the Tribunal did not ask him for any supporting documentation and that had he been asked, he would have been able to provide some. Further, the Applicant argued this day that the Tribunal member did not question him beyond those questions asked by the Tribunal, but of course it is not a matter for the Tribunal to make out the Applicant’s case for him. In respect of the Tribunal asking for supporting documentation from the Applicant, I note paragraph 56 of the Decision Record which is as follows:-
“I indicated to him that I wanted to put to him information under section 424AA of the Act. I said I was going to give him information which I considered would be the reason, or part of the reason, for affirming the decision under review. I indicated that I would explain the information to him and would explain the consequences of relying on the information and would invite him to comment on or respond to that information. I indicated that he could respond to that information orally or in writing and could seek additional time to comment on or respond to the information. When the options referred to above were repeated to him on each occasion he chose to respond orally. At the end of the hearing after talking to his agent, his agent advised that he would not submit any documents.”
Matters which the Tribunal put to the Applicant under s.424AA of the Act were accurately set out in paragraph 11 of the First Respondent’s Outline of Submissions filed 15 April 2014 and are as follows:-
a)during the hearing, the Applicant had failed to mention in his evidence to the Tribunal, his arrest and beating by the police for not having a pass despite being given the opportunity to do so and also previously raising the incident in his written statement attached to his visa application and in his interview with the department;
b)the Applicant did not mention during his entrance interview the police incident, the incident with a Sinhalese man at the fish market or the difficulties he faced fishing;
c)the Applicant had given inconsistent evidence about requiring a pass;
d)the Applicant had not mentioned in his evidence to the Tribunal the difficulties of earning an income in Sri Lanka;
e)the area of Udappu was almost entirely populated by Tamils thus undermining his claims about an increasing number of Sinhalese despite his evidence to the contrary;
f)country information did not suggest that Tamil fishermen were currently perceived as supporters of the LTTE;
g)the Applicant did not raise in evidence the visit by the Criminal Investigation Department to his mother despite having raised it previously; and
h)during his departmental interview, he claimed he had only been questioned about having sympathies for the LTTE when he was a child, and had never been accused of working for the LTTE.
The Tribunal asked the Applicant whether he had anything to add, and his migration agent indicated that she wished to talk to the Applicant about the documents that he wished to provide. The Tribunal member noted with regard to official documents that there was a high rate of document fraud in Sri Lanka, and that may lead her to place little weight on any such documents he might provide.
Under the heading “Findings and Reasons” of the Decision Record, the Tribunal set out the claims of the Applicant as follows:-
“108. The applicant claims he fears persecution from Sinhalese in his area and the authorities, including the military, local police and CID [Criminal Investigation Department], due to his ethnicity as a Tamil and due to his religion as a Hindu. He claims as a Tamil fisherman he was discriminated against in the workplace and restricted from working. He was perceived to be a LTTE supporter prior to his departure by police, he had a dispute with a Sinhalese man while working in the fish market, was harassed by Sinhalese while working in the fish market as he is a Tamil/Hindu. As Udappu is surrounded by Sinhalese, he claims Tamils are regularly harassed and abused when travelling through the Sinhalese areas. He also claims his home village of Udappu is being Sinhalized and he will face harm as a result.
109. He claims while working as a Tamil fisherman he fished without obtaining a pass which he was required to have. He claims on his return from fishing the Sri Lankan Navy saw he did not have a pass and he was taken to the police and was interrogated as to whether he was an LTTE supporter and beaten. He also claims that Tamils are often stopped from going fishing by the authorities.
110. He claims that after his departure to Australia men from the CID came looking for him, and asked if he had gone to Australia.
111. He also claims he will be harmed on return as a member of a number of particular social groups … as he is a Tamil and Hindu male, as he is returning as a failed asylum seeker and as he departed Sri Lanka illegally. He claims he will be imputed as a LTTE supporter because of these factors.”
Based on all the evidence before it, including the Applicant’s claimed past circumstances and what was accepted of his current circumstances and personal profile, the Tribunal was not satisfied that the Applicant faced a real chance of serious harm for any of the reasons he claimed, including cumulatively. The Tribunal was not satisfied that the Applicant faced a well-founded fear of persecution for a Refugees Convention reason in Sri Lanka now, or in the reasonably foreseeable future. The Tribunal was not satisfied the Applicant was a refugee under s.36(2)(a) of the Act. The Tribunal also found the Applicant not to be a person to whom Australia had protection obligations under s.36(2)(aa) of the Act. The Tribunal, as accurately set out in the Outline of Submissions filed 15 April 2014 by the First Respondent:-
a)did not accept the Applicant’s claims that he was taken to a police station, beaten and accused of being a supporter of the LTTE;
b)did not accept the Applicant had been truthful as to the difficulties as a Tamil and Tamil fisherman he feared he would face on return, or that there was a real chance this could escalate to serious harm in the reasonably foreseeable future;
c)did not accept the Applicant was truthful about the incident with the Sinhalese man at the fish market;
d)did not accept the Criminal Investigation Department had visited his home after his departure from Sri Lanka;
e)found the authorities and Sinhalese did not believe or suspect the Applicant of having an involvement with the LTTE for any reason;
f)based on country information, found the Applicant would not face any difficulty amounting to serious harm from the authorities or Sinhalese were he to return to Sri Lanka in the reasonably foreseeable future for reasons of his race, religion or imputed political opinion; and
g)found that the security situation in Sri Lanka “has stabilized and the risks posed to Sri Lankan citizens on the basis only of their ethnicity and Hindu religion are substantially reduced” (at paragraph 132 of the Decision Record).
As a result, based on country information, the Tribunal was not satisfied that there was a real chance of persecution amounting to serious harm as a result of the Applicant’s status as a failed asylum seeker, his illegal departure or imputed political opinion.
With respect to whether the Applicant had met the complementary protection criteria and being not so satisfied, the Tribunal made such finding because:-
a)it did not believe the Applicant had an adverse profile in Sri Lanka giving rise to any risk of harm; and
b)it did not believe there were substantial grounds for believing that the treatment faced by returned failed asylum seekers such as the Applicant gave rise to a real risk of significant harm and found the prospect of being detained for a long period was remote.
Consideration
In his Application for judicial review, the Applicant has not identified a specific jurisdictional error that the Tribunal made in relation to the making of its decision. No particulars of the grounds stated were provided by the Applicant. As Reeves J said in SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at paragraph 21, it is not possible for the Court to perform judicial review by reference to such general “grounds” as are set out in the application. The consequence of that is that it is appropriate for the Court to dismiss the application.
It is not apparent, in any event, that there is any arguable ground to be made out by the Applicant that the Tribunal erred in the making of its decision. There is no evidence to suggest that the Tribunal’s decision was not founded on a correct test in relation to the Applicant’s claim for a Protection (Class XA) visa. The Tribunal stated the relevant law regarding the circumstances in which a visa may be given at the commencement of its Decision Record. Its statement of the law was accurate. In addition, the Tribunal stated the law regarding the complementary protection criterion as contained in s.36(2)(aa) of the Act and considered, in paragraph 17 of the Decision Record, the circumstances in which there is taken not to be a real risk that an Applicant will suffer significant harm in a country. For the purposes of s.36(2B) of the Act, the Tribunal then applied the law as accurately set out to the facts before it. In doing so, the Applicant was afforded procedural fairness. The Tribunal invited the Applicant to attend a hearing, identified the issues arising in relation to the decision under review and considered each and every of the Applicant’s various claims, including raising for the Applicant those matters which troubled the Tribunal member on such consideration.
The Tribunal put to the Applicant the inconsistencies between his oral evidence at the Tribunal hearing and the claims detailed in his earlier entry interview. The Tribunal put information to the Applicant in compliance with s.424AA of the Act, even if it can be said that the matters put were unnecessary to be put in that way because what the Tribunal was really putting to the Applicant was its concerns with his evidence, his credibility, the implausibility of some parts of the evidence given and its inconsistency, either with prior evidence of the Applicant or relevant country information, all of which was put to the Applicant.
The Tribunal reached its decision on the basis of the country information before it and the information provided by the Applicant himself to the Tribunal. Such information falls within the exceptions set out in s.424A(3) of the Act. There is no basis on which it can be said that the Tribunal failed to afford the Applicant a fair hearing or that it did not consider any of his claims. It is not a matter for this Court to conduct a merits review of the Tribunal decision. The Tribunal made findings open to it on the basis of the facts and country information before it. No jurisdictional error attends the decision and the Application filed 15 July 2013 will be dismissed. Costs shall follow the event.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 2 May 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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