SZTBL v Minister for Immigration
[2014] FCCA 976
•21 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTBL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 976 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to consider integer of claims or took into account an irrelevant consideration. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 91R, 477 |
| Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZNZU v Minister for Immigration & Anor [2010] FMCA 197 SZQUQ v Minister for Immigration & Anor [2012] FMCA 672 VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541 WZANW v Minister for Immigration & Anor [2009] FMCA 1075 |
| First Applicant: | SZTBL |
| Second Applicant: | SZTBM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1622 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 15 November and 21 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr P Bodisco |
| Solicitors for the Applicants: | Stanford Lawyers |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The time for making the application be extended up to and including 17 July 2013.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1622 of 2013
| SZTBL |
First Applicant
| SZTBM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Extension of Time
This is an application for review of a decision of the Refugee Review Tribunal dated 7 June 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas. The Applicants are father and son and citizens of Sri Lanka.
The Application to this Court was filed on 17 July 2013, 5 days outside the 35 day limit prescribed in s.477(1) of the Migration Act 1958 (Cth) (the Act). Accordingly the Applicants seek an order extending the time for making the application in accordance with s.477(2) of the Act.
Under s.477(2) of the Act an extension of time in which to institute proceedings may only be granted if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court considers that it is necessary in the interests of the administration of justice to make such an order.
In written submissions the First Respondent opposed any extension of time on the basis that while the Applicants had sought such an order in the Application, they had not demonstrated that it was necessary in the interests of the administration of justice and had not filed an affidavit explaining the reasons for the delay (see r.44.05(2) of the Federal Circuit Court Rules 2001 (Cth)). The First Respondent further submitted that even if there was a satisfactory explanation for the Applicants’ delay, their grounds of review had insufficient merit to warrant an extension of time.
On the day of the hearing Counsel for the Applicants sought and was granted leave to file an affidavit of Frances Lillian Milne affirmed on 15 November 2013. Ms Milne, the coordinator of Balmain for Refugees, an organisation which assists asylum seekers seeking judicial review, attested that she had been contacted on 3 July 2013 by Red Cross and asked to assist the Applicants in circumstances where they had not received a response to their request to Legal Aid for assistance with an application to the Court. Ms Milne approached several barristers without success. On 15 July 2013 Mr Bodisco agreed to appear for the Applicants. The application was filed on 17 July 2013.
Counsel for the Applicant submitted that the extension of time should be granted in circumstances where the delay was “not gross or marked” and that the explanation for the delay was credible given that the Applicants faced barriers of age, language, unfamiliarity with the city, the legal system and how to obtain legal advice, there would be no prejudice to the Respondents and that the grounds of review were “meritorious”.
The First Respondent accepted that the Applicants had met the requirement of an application in writing for an extension of time and a supporting affidavit, but suggested that the evidence of Ms Milne could be taken as indicating that the Applicants had been made aware of the time limits for applying to this Court and that there was no explanation for why the proceedings had not been commenced in the two week period between the Tribunal decision and the notification to Ms Milne that the Applicants intended to commence proceedings in this Court.
The First Respondent also submitted that the strength of the proposed grounds should be balanced against any explanation for the delay in commencing the proceedings and that if neither ground in the Further Amended Application was made out, the appropriate course would be to dismiss the application for an extension of time with costs because the grounds were “not particularly strong”.
The issue of whether an extension of time is “necessary in the interests of the administration of justice” is to be determined having regard to all the circumstances of the case. Several factors are commonly referred to as relevant under s.477(2)(b) of the Act, including the extent of the delay in commencing the proceedings and whether there is a satisfactory explanation for the delay, whether there is any merit in the substantive application, whether there is any prejudice to the respondents in granting an extension of time, the effect on the applicant if an extension of time is not granted and the interests of the public at large (see SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] – [55] and SZQUQ v Minister for Immigration & Anor [2012] FMCA 672 at [6]).
I have had regard to all the circumstances of this case. First, as conceded by Counsel for the First Respondent, the five-day delay in this case was not lengthy. I have borne in mind that the “extent of the delay must be balanced against the reason for the delay” (WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [29]). I am satisfied from the evidence of Ms Milne that the latter part of the delay was caused by her ultimately successful attempts to obtain legal representation for the Applicants. Moreover once the Applicants had legal representation an application was filed within two days. It is the case that in her affidavit Ms Milne indicated that she was aware of the 35-day limit and when it would expire and that she had informed the Applicants’ Red Cross caseworker of this. However it is also clear that the Applicants had already sought Legal Aid and that Ms Milne’s assistance was sought in circumstances where they had not received a response.
In the particular circumstances of this case, having regard to the extent of the delay and the explanation provided I am satisfied that the Applicants have provided a reasonable explanation for the fact the Application was filed 5 days outside the s.477(1) time limit.
I have also had regard to the absence of any prejudice to the Respondents and to the impact on the Applicants (insofar as that can be considered on the evidence before the Court) if time is not extended, in particular the lack of appeal rights as well as possible removal from Australia, as well as to the interests of the public at large. It is not in dispute that there would be no prejudice to the Respondents if time were to be extended.
As Stone J suggested in Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299; [2007] FCA 591 at [35], the concept “in the interests of the administration of justice” in s.477(2)(b) involves consideration not only of the reasons for not meeting the original time limit but also of whether the application would have any prospect of success were the extension of time to be granted (also see SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11]).
Section 477(2) is concerned with circumstances justifying a departure from the ordinary rule in s.477(1) that an application for judicial review must be lodged within 35 days of the date of the Tribunal decision. The remarks of Heerey J in VQAN v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCA 1541 at [23] suggesting that the longer the delay without reasonable explanation, the stronger the argument would need to be on the substantive merits, are in point notwithstanding that in VQAN his Honour was referring to the exercise of the discretion to refuse relief.
In this case the grounds relied on in the Further Amended Application are properly formulated by reference to contentions that, if made out, could establish jurisdictional error. While that does not of itself suffice to establish prospects of success, I am of the view that in all the circumstances of this case, the length and reasons for the delay and the merits of the grounds are such that the extension of time sought should be granted as necessary in the interests of the administration of justice. However for the reasons that follow the Application should be dismissed on its merits.
Background
The Applicants arrived in Australia by boat on 18 July 2012. The Applicant father (referred to for convenience as “the Applicant”) participated in an irregular maritime arrival entry interview on 8 August 2012. In response to questions about his reasons for leaving Sri Lanka, the Applicant was recorded as claiming to fear harm from the Sri Lankan army and the Criminal Investigation Department (CID) due to a number of incidents involving family members. In particular, he claimed that the army was looking for his wife’s brother (who had gone to India) and that they had received a number of visits and threats by the Sri Lankan army enquiring about his brother-in-law’s whereabouts. The Applicant claimed that on one occasion he was taken to the police station and questioned about his brother-in-law’s whereabouts. He also claimed that three months before his departure from Sri Lanka people came in a white van and abducted people near his home. He conceded that he had never been harmed, but claimed that Tamils could not live in Sri Lanka and that if he returned to Sri Lanka he would be added to the “list of people who went out of the country” and taken to jail, that he might be abducted “[b]ecause we came illegally and we already will tell what this type of life is like in Sri Lanka” and that the CID and the army might “take me and kill, they can do that” because he was a Tamil.
On 3 December 2012 the Applicants lodged a protection visa application, after they were notified that the Minister had exercised his power under s.46A(2) of the Act to permit them to do so.
In a statutory declaration dated 3 December 2012 accompanying the protection visa application the Applicant claimed to fear persecution by the Sri Lankan army because he had been filmed participating in a 2002 Pongu celebration and the army had abducted “people who had been involved in the celebrations that day”, including friends and neighbours. He also claimed to fear the CID because they knew that he was a member of a Hindu temple committee and his sister-in-law’s cousin who was also a member of that committee had been detained and investigated by the CID in 2003 and then abducted a few months later (as were other people). The Applicant claimed he feared abduction and went to work in Qatar in 2003. He claimed that the army had been trying to arrest his brother-in-law in 2006, but that his brother-in-law had left Sri Lanka. He claimed the Sri Lankan army and the CID came to his house in 2007 after he returned to Sri Lanka to ask about his brother-in law’s whereabouts, because in a 2006 press interview his brother-in-law had said he was a witness to the Sri Lankan army throwing bombs at civilians. He claimed he was threatened with abduction and on one occasion taken to the police station for questioning. In November 2007 he returned to Qatar. He claimed that when he returned to Sri Lanka in 2008 the army and the CID came to his house or his father-in-law’s shop and threatened that his family “would have to face the consequences” and that they would abduct him if they did not find his brother-in-law.
The Applicant claimed to fear that he would be harassed, physically harmed, detained, abducted, tortured or killed by the army or the CID because of his race as a Tamil, his involvement in the 2002 Pongu Tamil celebrations, his connections with his sister-in-law’s cousin and his brother-in-law and the past threats and questioning about them. He also claimed to fear he would be detained because he had left Sri Lanka illegally. He claimed that after he came to Australia his wife and father-in-law had been questioned about his whereabouts.
On 21 December 2012 the Applicants’ representative provided the Department with a submission summarising the Applicant’s evidence and claims, addressing issues raised at the departmental interview and providing country of origin information said to be relevant to the Applicant’s claims. The Applicant’s claims were summarised as claims to fear harm on the basis of his ethnicity as a Tamil, his imputed political opinion as an opponent of the Sri Lankan government and/or as a supporter of the LTTE and his membership of one or more of the particular social groups of Tamil people who were family members of public opponents of the Sri Lankan government and/or returned failed asylum seekers of Tamil ethnicity. It was also submitted that the Applicant had a “cumulative profile” which “would cause him to be subject to investigation on arrival at the airport in Sri Lanka if he was deported from Australia, and even after the conclusion of such investigation, would place him at continuous risk of further harassment or detainment”.
A delegate of the First Respondent refused the application for a protection visa on 3 January 2013. The Applicants sought review by the Tribunal. The Applicant and his representative attended a hearing on 5 March 2013 and provided further supporting documents. In addition, the Applicant’s representative provided the Tribunal with a statutory declaration of the Applicant dated 5 March 2013 said to be a Supplementary Statement. In this statement the Applicant claimed that his wife had informed him that since he came to Australia the CID had gone to his house and to his father-in-law’s shop to ask his wife and his father-in-law about his whereabouts. He also claimed that his father told him that on 15 January 2013 his father-in-law had been given a letter from the police, a copy of which was attached, which asked the Applicant’s father-in-law to go to the police station and provide a statement. He claimed that when his father-in-law attended the CID office on 21 January 2013 he was questioned about the Applicant’s whereabouts, taken into custody, denied bail and was to be detained until the CID found the Applicant and that his father was also questioned. He claimed he would have been arrested, detained, and subject to questioning instead of his father-in-law if he had been in Sri Lanka. His wife and son went into hiding.
The Applicant claimed the CID was trying to find him to ask about his brother-in-law’s whereabouts and because they suspected them of involvement in activities against the army. He believed he would be arrested, detained and questioned, including over his brother-in-law’s whereabouts if he returned and that he would be killed or subjected to physical harassment and torture by the CID. At the hearing the Applicant told the Tribunal that his wife and younger son had unsuccessfully tried to come to Australia by boat and that she had been charged with leaving Sri Lanka illegally, detained for 14 days and that she was required to report monthly to the authorities.
In a post-hearing submission the Applicant’s representative further addressed the Applicant’s claims to fear persecution, concerns the Tribunal raised at the hearing including in relation to the fact that the Applicant had not faced serious or significant harm when he returned to Sri Lanka in 2007 and between 2008 and 2012, the Applicant’s ability to enter and leave Sri Lanka, his decision not to go to India, inconsistencies in his evidence and the risk to returned Tamil failed asylum seekers as well as the application of the Refugees Convention and complementary protection criteria to children.
The Tribunal Decision
The Tribunal affirmed the decision of the delegate not to grant the Applicants protection visas on 7 June 2013. In its reasons for decision it summarised the Applicant’s claims and evidence, including at the Tribunal hearing.
In its findings and reasons the Tribunal accepted that the Applicants were Tamils. However, having regard to country information it did not accept that simply being Tamils or Tamils from the north gave rise to a well-founded fear of persecution from the Sri Lankan authorities in the absence of a particular additional factor such as real or perceived previous links to the LTTE.
The Tribunal summarised the Applicants’ claims about fears based on past events as follows:
The first-named applicant claims to have come to the adverse interest to the Sri Lanka authorities on several grounds; these are his attendance at the Pongu Festival in 2002; his association with a member of the TNA at his local temple, who was detained in 2003; and because his brother-in-law, who is now in India, is of adverse interest to the Sri Lankan authorities.
In relation to the Applicant’s claim with respect to the Pongu Tamil celebrations in 2002, the Tribunal accepted that the Applicant may have attended the Pongu Festival under duress from the LTTE. However, given that nothing untoward had happened to the Applicant in the next 10 years, the Tribunal did not accept that his attendance at the festival had been noted by the Sri Lankan authorities and that there was a real chance it would result in harm to him from the Sri Lankan authorities on his return.
Nor did the Tribunal accept that there was a real chance that the Applicant would face harm from the Sri Lankan authorities by reason of his claimed association with a named person on the local Hindu temple committee who was affiliated with the Tamil National Alliance (TNA) and arrested in 2003. It recorded that the Applicant claimed he was questioned in 2003. The Tribunal also took into account the fact that the Applicant had indicated that his association with this person was not political but was through his local temple. It also took into account the Applicant’s subsequent travel to and from Qatar as follows:
More importantly, the applicant has travelled, on a passport issued in his own name, in and out of Sri Lanka on several occasions since 2003 without event or further questioning in relation to this association.
I do not accept that the purpose of the applicant’s travel to Qatar was for purposes of safety and to avoid the Sri Lankan authorities. The applicant applied for and was granted work visas and I find that his travel was for the purpose of work Qatar to work from 2003 until to 2007 (sic), returning for only a brief period in July before returning to Qatar in November 2007 for a further year.
The Tribunal also rejected the Applicant’s claims in relation to being questioned on account of his brother-in-law’s disappearance as not credible. It stated:
I do not accept that the applicant’s brother-in-law has a profile as a public opponent of the Sri Lankan government and that the authorities have taken an adverse interest in the applicant by reason of his brother-in-law. I do not accept that the applicant was subject to ongoing questioning prior to his departure from Sri Lanka and would be imprisoned on his return. I find several aspects of these claims to lack credibility.
I do not find credible the applicant’s account of his brother-in-law’s claimed profile or adverse interest to the Sri Lankan authorities. The applicant’s evidence about his brother-in-law was inconsistent and unpersuasive.
The Tribunal had regard to the differences between the Applicant’s claims about his brother-in-law at the hearing and in his written statement. At the hearing the Applicant had claimed that his brother-in-law, who was injured by a bomb blast in 2006, had told the Red Cross and local politicians that the bomb was the work of the Sri Lankan Army and that he had been named in the newspaper as a victim of the bombing. However in his written statement the Applicant had claimed that his brother-in-law had given an interview to the press that was published in a number of newspapers.
The Tribunal also had regard to inconsistencies between the Applicant’s oral and written evidence and some of the documentation he had provided as to matters such as the date of a bomb incident in which his brother-in-law was injured, the fact that a medical diagnosis referred to an assault by army personnel rather than a bomb blast injury and to the fact that the Applicant had stated that “he could not comment on the date discrepancies as he was in Qatar at the time of the claimed incident”.
The Tribunal did not find the Applicant’s claims that he was of ongoing adverse interest to the Sri Lankan authorities prior to coming to Australia credible because he had spoken “in generalities” when asked about the adverse attention he had experienced and had withdrawn his claim of torture when asked to elaborate. The Tribunal had regard to the fact that the Applicant did not claim to have done anything to bring himself to the adverse interest of the authorities, but rather claimed that his brother-in-law was of adverse interest and that after the brother-in-law left Sri Lanka he became the focus of the authorities’ interest. The Tribunal did not accept these claims. It had regard to the fact that the Applicant was in Qatar at the time of the claimed incidents, that he was not implicated in those events and that he had “travelled freely in and out of Sri Lanka in the two years after the claimed event without anything more than been (sic) questioned as to the whereabouts of his relative”. It did not accept the Applicant’s explanation that the authorities did not have a file on him at that time.
The Tribunal did not give any weight to the police report provided by the Applicant stating that he was wanted for questioning. It did not accept that the authorities would be seeking to question the Applicant about his relatives given that his wife had informed the police that her brother was in India.
Hence, the Tribunal did not accept that the Applicant was a family member of a public opponent of the government, that he had come to the adverse interest of the authorities for that reason and had been subject to regular questioning and harassment by the army and the CID or that he would be arrested or tortured by the authorities for that reason on his return to Sri Lanka.
The Tribunal accepted that both Applicants would return to Sri Lanka as members of the particular social group of failed asylum seekers, but did not accept that this gave rise to a well-founded fear of persecution of itself or in combination with their illegal departure. It accepted that as illegal departees they would come under scrutiny from the authorities on return. The Tribunal had regard to a DFAT Report of 22 October 2012 about the treatment of returnees and to the Applicant’s evidence in relation to detention of persons who had departed Sri Lanka illegally, including about his wife’s brief detention and subsequent monthly reporting requirement. The Tribunal did not accept that questioning, surveillance or brief detention for reason of illegal departure constituted serious or significant harm and on the basis of country information did not accept that the Applicant would be treated more harshly because of his Tamil ethnicity than other persons who had departed Sri Lanka illegally and sought asylum overseas.
The Tribunal accepted that as a minor the Second Applicant was vulnerable. However, having regard to information in relation to the treatment of minors upon return to Sri Lanka, it concluded that extra provisions were made in relation to minors to accommodate their particular vulnerability and did not accept that he faced a real chance of either serious or significant harm.
The Tribunal did not accept that the Applicants had a well-founded fear of persecution for a Convention reason on their return to Sri Lanka now or in the reasonably foreseeable future or that there were substantial grounds for believing that as a necessary and foreseeable consequence of their being removed from Australia to Sri Lanka there would be a real risk of suffering significant harm. It affirmed the delegate’s decision.
This Application
The Applicants sought review of the Tribunal decision by Application filed on 17 July 2013. They now rely on a Further Amended Application. It contains three grounds of review. Ground one was not pressed. The remaining grounds are as follows:
2. The Tribunal has failed to consider the full integers of the applicant’s claim.
Particulars
(a) The applicants squarely raised a claim regarding fears that they would be arrested, detained, questioned or otherwise face harm by the army or CID in Sri Lanka [CB 109 and 170];
(b) The Tribunal failed to address and deal with this claim as put by the applicants, instead dealing with the limited issue relating to the harm they may experience at the airport [CB 213 at 59 and 60] after accepting that the applicants would come under scrutiny from the Sri Lankan authorities upon their return [CB 212 at 57];
(c) Because the Tribunal failed to consider all the integers of the claim advanced by the applicant, it failed to complete the exercise of jurisdiction embarked upon.
3. The Tribunal took an irrelevant consideration into account under section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
(a) The Tribunal at paragraph 60 of the decision took into account an irrelevant consideration under section 36(2)(aa) of the Migration Act 1958 (Cth), namely whether any significant harm would be suffered due to a law of general application unrelated to the ethnicity of the First and Second Applicant.
Failure to consider integer of a claim
The Applicants submitted that the Tribunal failed to complete the exercise of its jurisdiction by failing to consider all the integers of the claim in the sense considered in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 per Allsop J at [42], NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [23], [26] – [27], [86] – [87].
In written submissions the Applicants addressed the particulars to this ground. It was pointed out that in the adviser’s written submission to the Department, it was claimed that the First Applicant feared persecution as follows:
We submit that if the Applicant is returned to Sri Lanka there is a real chance that he will be seriously harmed based on the following Refugees Convention grounds:
·Ethnicity – Tamil
·Imputed political opinion
oOpponent of the Sri Lankan government
oA supporter of the LTTE
·Membership of one or more of the following particular social groups:
oTamil people who are family members of public opponents of the Sri Lankan government
oReturned failed asylum seekers of Tamil ethnicity
We submit that the Applicant has a cumulative profile which would cause him to be subject to investigation on arrival at the airport in Sri Lanka if he was deported from Australia, and even after the conclusion of such investigation, would place him at continuous risk of further harassment or detainment.
Additionally, in the First Applicant’s supplementary statutory declaration of 3 December 2012 he claimed to fear that if he returned to Sri Lanka he would be arrested, detained and questioned, including over his brother-in-law’s whereabouts, and subject to serious harm by the CID.
This material was said to “squarely” raise a claim regarding fears that the Applicants would be arrested, detained, questioned or otherwise face harm by the army or the CID in Sri Lanka in the sense considered in NABE (No 2) at [58].
It was contended that while the Tribunal dealt specifically with issues at the airport for those returning to Sri Lanka, it had effectively “side stepped” the claim made by the adviser that the Applicants would be “at continuous risk of further harassment or detainment” on return to Sri Lanka.
In oral submissions Counsel for the Applicants suggested that the substance of the First Applicant’s claim was based on various past incidents in Sri Lanka, pointed out that one basis for his claim was his Tamil ethnicity and submitted that his claims were not limited to a fear of harm at the airport. It was submitted that country information suggested that the authorities at the airport and the authorities in the broader jurisdiction of Sri Lanka were different entities and that the Applicants’ claim to fear harm on the basis of Tamil ethnicity was not addressed by the Tribunal’s consideration of harm at the airport, without more. The distinction between the relevant authorities was said to have been highlighted in the adviser’s submission to the Tribunal to the effect that the delegate’s reference to the ability of the First Applicant to depart from the Sri Lankan airport without any problems should not be taken as an indication that he was not of interest to the Sri Lankan authorities as the Department of Immigration and Emigration (at the airport) might not necessarily have been aware of his previous dealings with the Sri Lankan army or the CID.
In particular, it was contended that country information referred to in the Applicants’ representative’s submission indicated that as a failed asylum seeker the First Applicant could be subjected to extortion and face a risk of abduction but that the Tribunal failed to consider possible harm that could be experienced outside the context of the airport.
Counsel for the Applicants submitted that the Tribunal’s findings in relation to the credibility of the First Applicant did not deal with his “cumulative profile” claim because one of the integers of the claim was that the Applicant faced a continuous risk of further harassment and detention as a returned asylum seeker of Tamil ethnicity. This claim was said to have “survive[d]” the credibility findings made against the First Applicant. Further, it was contended that the Tribunal’s finding that the fact of being Tamil alone did not give rise to a fear of persecution did not extend to the claim in relation to the Applicants’ fear of harm as returned asylum seekers of Tamil ethnicity. In essence, it was submitted that the Applicants’ claim to fear harm as returned failed asylum seekers of Tamil ethnicity was not restricted to a fear of harm at the airport but that the Tribunal had not dealt with the Applicants’ claims as raised squarely by the material before it.
The Applicants submitted that this error was “replicated” in the consideration of the Second Applicant’s claims, having regard to the fact that there was country information before the Tribunal in relation to the particular vulnerability of returnees who were minors (DFAT Report 1486 – RRT Information Request: LKA41898), which stated:
On some occasions, returning minors have been detained, charged and remanded into custody similar to adult returnees.
The First Respondent submitted that the Tribunal considered, but rejected, all of the claims made by the Applicants and that it did not focus solely on what might happen to the Applicants at the airport. It was acknowledged that the Applicants made broad claims to fear harm throughout Sri Lanka, including from the CID and the army based on their ethnicity as Tamils and the imputed political opinion of the First Applicant. However it was submitted that these claims were clearly considered and rejected by the Tribunal. It was also contended that the claim to fear harm as members of the particular social group of returned failed asylum seekers of Tamil ethnicity was put on a narrower basis and focused, as did supporting country information, on a claimed fear of mistreatment on arrival in Sri Lanka by being subject to interrogation, detention and possibly torture. It was submitted that the Tribunal clearly dealt with this claim as articulated by the Applicants and that the very generalised claim made by the adviser about the First Applicant having a “cumulative profile” that would also place him at risk of further “harassment or detainment” did not raise an additional claim of the nature contended for by the Applicants.
Consideration
In NABE (No.2) the Full Court of the Federal Court considered the circumstances in which a Tribunal would be obliged to consider a claim not expressly advanced. In that context, the Court referred with approval to authorities that suggested that an unarticulated claim must be raised “squarely” on the material available before the Tribunal before it had a statutory duty to consider it. However, as the Court recognised at [58], while there is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant, the evidence and material the Tribunal accepts may squarely raise a case that is not articulated:
The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. (emphasis added)
It has not been established that the Tribunal failed to deal with an integer of the Applicants’ claims that was either expressly raised or arose clearly or squarely on the material before the Tribunal.
First, insofar as the Applicants’ contention is that the Tribunal failed to address a claim that, as their adviser had submitted to the Department, the First Applicant had a “cumulative profile” which would cause him to be subject to investigation on arrival and thereafter harassment or detention, in particular by the CID and the army, this ground is not made out.
As explained above, the Applicants’ claims to fear persecution were put on several bases under the Refugees Convention. It is the case that the First Applicant’s claims described by his adviser as based on ethnicity as a Tamil, imputed political opinion and/or membership of the particular social group of family members of public opponents of the Sri Lankan government (as ultimately characterised by the adviser in a submission to the Tribunal of 25 March 2013) were not limited to a claimed fear of harm at the airport and involved a claimed fear of the Sri Lankan army and the CID.
However, the Tribunal addressed such claims. It found that simply being a Tamil or a Tamil from the north did not give rise to a well-founded fear of persecution from the Sri Lankan authorities. The Tribunal did not accept that the First Applicant’s attendance at the Pongu festival was noted by the Sri Lankan authorities or that there was a real chance that it would result in the Applicant being harmed by the Sri Lankan authorities. Nor did it accept that there was a real chance the Applicant would face harm from the Sri Lankan authorities on his return due to his claimed association with a fellow Hindu temple committee member who was allegedly affiliated to the TNA and arrested in 2003. It did not accept that the Applicant had been or would be of adverse interest to the authorities for this reason. It rejected the claim that the Applicant’s brother-in-law had the asserted political profile. The Tribunal did not find the Applicant’s account of his ongoing adverse interest to the Sri Lankan authorities on the basis of his association with his brother-in-law or past events to be credible.
These findings amounted to a clear rejection of the First Applicant’s claims to fear persecution for reason of ethnicity, imputed political opinion or as a family member of a public opponent of the Sri Lankan government.
While this left for consideration the Applicants’ claims as returned failed asylum seekers of Tamil ethnicity, once the First Applicant’s other claims were rejected there was no factual basis for a “cumulative profile” based on a combination of all the asserted bases for his claimed fear of harm which would cause him to be at continuous risk of harassment or detention by the army or the CID. In these circumstances the Tribunal did not err in failing to consider what the position would have been for an applicant who had such a “cumulative profile”.
Such reasoning addresses ground two as pleaded. However it emerged in submissions that the Applicants’ contention was that their claims to fear harm as returned asylum seekers of Tamil ethnicity were not restricted to a fear of harm at the airport and that the Tribunal had erred in failing to address their fear of harm in Sri Lanka generally from the CID and the army as failed asylum seekers of Tamil ethnicity.
However, as Counsel for the First Respondent pointed out in relation to this characterisation of the suggested jurisdictional error, the claims made by the Applicants as failed asylum seekers of Tamil ethnicity were articulated on a narrower basis, focusing on a risk of harm on arrival on return to Sri Lanka. Thus, in his original statutory declaration the First Applicant drew a distinction between his claims to fear mistreatment by the Sri Lankan army or the CID because of his race as a Tamil and the claimed past events and an additional claimed fear of detention on return because he left the country illegally. The adviser’s written submission of 21 December 2012 focused entirely on claims of the First Applicant and similarly distinguished between the claims based on ethnicity, imputed political opinion and being a Tamil family member of opponents of the government which were said to place the Applicant at risk of harm from the Sri Lankan army and CID throughout Sri Lanka and a claimed risk of interrogation, detention at the airport and possible torture “on arrival” in Sri Lanka by reason of his status as a failed returned asylum seeker of Tamil ethnicity. Country information cited addressed this possibility.
The Applicant’s supplementary statutory declaration dealt only with the Applicant’s fears based on past events and his association with his brother-in-law.
The Applicants have not pointed to anything in the transcript of the Tribunal hearing raising claims to fear harm from the army and the CID throughout Sri Lanka as failed asylum seekers of Tamil ethnicity or otherwise on a broader basis than the claims articulated by the adviser which focused on what would occur on or shortly after arrival in Sri Lanka (as for example was said to have occurred in relation to the First Applicant’s wife).
Indeed, it is apparent from the transcript that the First Applicant’s main claims at the hearing related to the consequences of past events and his relationship at the hearing with his brother-in-law. Moreover, when asked about the Second Applicant, the First Applicant referred only to the child’s concern about the absence of his mother and did not articulate any basis for a claim of a fear of serious or significant harm.
When the Tribunal asked the Applicant if he had fears based on his illegal departure from Sri Lanka he claimed to fear being subjected to inquiry or detention at the airport. The Tribunal put to him that while it accepted that as a returnee he would face questioning and possibly short term imprisonment on return this may not constitute serious or significant harm. The Applicant did not raise a broader claim about a fear of ongoing harm throughout Sri Lanka.
The adviser made a post-hearing submission. Again, the claims made relating to the Applicant being a Tamil returned failed asylum seeker focused on fears of harm (detention, ill-treatment or torture) on arrival. Claims were also made on behalf of the Second Applicant as a Tamil with particular vulnerability as a child. Such claims were addressed by the Tribunal.
Having regard to the high threshold for satisfaction that an integer of an Applicant’s claims that is not raised expressly is nonetheless raised clearly or squarely on the material before the Tribunal (see NABE (No.2) at [68]) it has not been established that a broad claim to fear harm throughout Sri Lanka on an ongoing basis as a returned failed asylum seeker of Tamil ethnicity was “squarely” raised as an integer of either Applicant’s claims in the manner contended for by the Applicants. Identification of such an integer of either Applicant’s claims would have required “constructive or creative” activity on the part of the Tribunal (NABE (No.2) at [58]). The Tribunal dealt with the claims as articulated by the Applicants and as arose squarely on the material before it. It made a broad finding rejecting the Applicants’ claim to fear harm as failed asylum seekers who departed Sri Lanka illegally. In addressing the First Applicant’s claimed fear as an illegal departee who had sought asylum, the Tribunal accepted that he may be questioned, briefly detained and also that he may be subject to surveillance (as claimed had occurred in relation to the Applicant’s wife). However it did not accept that these consequences would amount to serious or significant harm. Nor, based on cited information, did it accept that because of his Tamil ethnicity the Applicant would be treated more harshly than others who had departed illegally and sought asylum. The Tribunal also considered the position of the Second Applicant as a child failed asylum seeker.
It has not been established that the Tribunal failed to address an integer of either Applicant’s claims in a manner constituting jurisdictional error. Ground two is not made out.
Irrelevant considerations
Ground three in the Further Amended Application is as follows:
3. The Tribunal took an irrelevant consideration into account under section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
(a) The Tribunal at paragraph 60 of the decision took into account an irrelevant consideration under section 36(2)(aa) of the Migration Act 1958 (Cth), namely whether any significant harm would be suffered due to a law of general application unrelated to the ethnicity of the First and Second Applicant.
Paragraph 60 in the Tribunal decision, referred to in the particulars, is in the part of the Tribunal decision that addressed the Applicants’ claims as failed asylum seekers. It is as follows:
I do not accept that questioning of the first named applicant, surveillance or a brief detention of the applicant by the Sri Lankan authorities for reason of the applicant’s illegal departure from Sri Lanka amounts to either serious harm in respect to the Refugees Convention or significant harm as required by the complementary protection legislation. On the basis of UNHCR report set out above I do not accept that because of his Tamil ethnicity the applicant will be treated more harshly than other persons who have departed Sri Lanka illegally and sought asylum overseas.
The Applicants submitted that insofar as this finding addressed the Applicants’ claims under the complementary protection criterion the Tribunal had, in the last sentence of paragraph 60, erred in applying the Refugees Convention test in s.91R of the Act to the complementary protection criterion by requiring that significant harm (as well as serious harm amounting to persecution) involve systematic and discriminatory conduct.
Counsel for the Applicants submitted that in paragraph 60 the Tribunal was addressing an integer of the Applicants’ Refugee Convention claims in relation to whether a law of general application, the Sri Lankan Immigration and Emigration Act, would be applied to the First Applicant in a discriminatory manner. However it was submitted that as s.91R did not apply to the complementary protection criterion this was an irrelevant consideration in the context of consideration of the complementary protection criterion.
The First Respondent submitted that the First Applicant had not claimed that he feared significant harm consisting of being charged with a particular offence under the Immigration and Emigration Act in relation to his illegal departure from Sri Lanka, that the Tribunal was aware of and had regard to the existence of this legislation and procedures for identity and security checks at the airport for returnees and that it then dealt with the complementary protection claim by not accepting that the harm feared by the First Applicant constituted significant harm as defined in the Migration Act.
It was submitted that the Applicant’s contention that the Tribunal misdirected itself as to the proper enquiry it ought to undertake by enquiring whether any harm that would be suffered by the Applicant would be as a result of the application of a law of general application unrelated to the Applicant’s ethnicity misread the Tribunal’s finding in paragraph 60 of its reasons and that the Tribunal was not addressing the application of a law of general application or the limitations in s.91R of the Act in its reasons for decision, including in paragraph 60, in this part of its reasoning, but rather the Applicant’s claims involving his Tamil ethnicity.
The First Respondent reiterated that the Applicants’ claim to fear harm as returned failed asylum seekers of Tamil ethnicity had a narrower focus than the other bases relied on and focussed on a fear of questioning and detention at the airport and surveillance. It was submitted that the Tribunal dealt with this claim as articulated by the Applicants in relation to the First Applicant in the first part of paragraph 60 of its reasons in finding that such consequences did not amount to either serious harm under the Refugees Convention or significant harm within the complementary protection criterion. It then addressed the fact that the First Applicant was a Tamil in the last part of that paragraph.
It was contended that while the Tribunal referred to country information suggesting that the offence provisions of the Immigration and Emigration Act could be invoked in relation to those who departed Sri Lanka illegally in certain circumstances, the Tribunal had not in fact accepted that the First Applicant would be charged, although it accepted that, as he had claimed, the First Applicant may be questioned, detained and/or the subject of some surveillance. In any event, the First Respondent contended that the Tribunal’s initial findings in relation to the Applicants’ claims as failed asylum seekers addressed the claims as framed and that in this respect the final sentence in paragraph 60 could be said to be superfluous.
Read in context, it is clear that the Tribunal considered the Applicants’ claims to fear serious harm and/or significant harm as failed asylum seekers. It had regard not only to the fact that they were failed asylum seekers but also to their illegal departure and the fact they were Tamils. Thus, it accepted that their illegal departure meant that they would come under scrutiny from the Sri Lankan authorities. It addressed the possible consequences of such scrutiny as described in independent country information. It also recorded the First Applicant’s evidence about the consequences for those who departed illegally. He claimed some people were detained briefly in poor conditions, as his wife had been, and that she was now required to report monthly. In this context the Tribunal considered whether the harm the Applicants claimed to fear amounted to either serious or significant harm.
I am not satisfied that on a fair reading of paragraph 60 in the context of the Tribunal decision as a whole, the Tribunal was, in the last sentence, importing the requirements of the definition of persecution in s.91R of the Act into the concept of significant harm for the purposes of the complementary protection criterion. I am not of the view that the Tribunal’s reference to whether the Applicant would be treated “more harshly than other persons” was a reference to the test in s.91R of the Act or that the Tribunal was, in this part of its reasons, considering whether a law of general application would be applied in a discriminatory manner to the Applicant. Rather, the Tribunal was addressing the fact that an aspect of the Applicants’ claims as failed asylum seekers was that they were of Tamil ethnicity. In this context the Tribunal had regard to earlier cited information from the UNHCR about the fact of Tamil ethnicity (not to the DFAT Report relating to the Immigration and Emigration Act). In any event, it had already found that the harm feared by the First Applicant did not amount to either serious harm in respect of the Refugees Convention or significant harm as required by the complementary protection regime. Moreover paragraph 60 did not relate to the Second Applicant whose claims were addressed in the following paragraphs of the Tribunal’s decision.
This ground is not made out.
As neither of the grounds relied on by the Applicants has been made out the application must be dismissed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 21 May 2014
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