SZTCF v Minister for Immigration
[2014] FCCA 349
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTCF v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 349 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2)(aa), 36(2A), 91R |
| SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 833 VBAS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 516 ALR 307 VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32 |
| Applicant: | SZTCF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1674 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 18 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Tamil interpreter. |
| Counsel for the First Respondent: | Mr M. Smith |
| Solicitor for the First Respondent: | Mr B. Hornsby of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The name of the first respondent be amended to “Minister for Immigration & Border Protection”.
The Application filed on 22 July 2013 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the Application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1674 of 2013
| SZTCF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1303598, a decision of Tribunal Member C. Keher dated 26 June 2013 affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”) (formerly the Minister for Immigration and Citizenship), to refuse to grant the applicant a Protection (Class XA) visa.
In accordance with the Court’s orders of 15 August 2013, the solicitors for 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. This order was complied with and the volume of material provided is identified as the Court Book (“CB”), has been marked as Exhibit “A” and is the only evidence before the Court.
The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 10 October 2013. The applicant elected not to file an amended application or any evidence.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s representatives. 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 citizen of Sri Lanka and arrived in Australia during June 2012 as an irregular maritime arrival. On 14 September 2012, the Minister exercised his discretion under s.46A(2) of the Migration Act permitting the applicant to make an application for a Protection visa (CB 18). The applicant made an application for a Protection visa on 14 September 2012 (CB 19-44). On 15 February a delegate of the Minister refused to grant the applicant a Protection visa (CB 94-116).
The applicant then filed an application with the Tribunal to review the delegate’s decision (CB 117). The application was heard on 11 June 2013 and on 26 June 2013 the Tribunal affirmed the Minister’s delegate’s decision to refuse to grant the applicant a Protection visa.
Applicant’s Claims before the Tribunal
The applicant is a Tamil Hindu male who was born and grew up in Udappu, a village on the west coast of Sri Lanka. Initially, he claimed the Sri Lankan Army (“SLA”) and the Sri Lankan Navy had harassed him and his employer while they were fishing off the coast of Udappu, and this prevented him from earning a living. He also claimed that the Sri Lankan authorities suspected local Tamil villagers were members or supporters of or associated with the Liberation Tigers of Tamil Eelam during the war, and that he himself was subject to regular identification checks, as well as searches of his home, by the authorities. The applicant also claimed that on three separate occasions the SLA stopped him, confiscated his motor bike and forced his parents to pay a few to recover the bike. The applicant claimed such “extortion is only directed at Tamils”. He claimed he was beaten once in 2009 because he did not have any identification, in 2012 he had disputes with local Sinhalese fishermen and the SLA assaulted and threatened him (CB 143-144 at [10]-[13]).
At the hearing before the Tribunal, however, the applicant resiled from significant parts of both his history and claims. He claimed, at the hearing, to fear harm because the authorities in Sri Lanka may suspect him of being a member or supporter of, or associated with, the LTTE and also because he was a failed asylum seeker who had departed Sri Lanka illegally. He repeatedly confirmed that he had only been to Mullaitaivu once in February 2012, that he had worked as a security guard at a prawn farm during 2010 and 2011 and that he had encountered no problems during this time (CB 144-145 at [15]-[18]). Further, at the hearing before the Tribunal the applicant resiled from his claims that he had worked as an off-shore fisherman in Udappu and that he had been harassed by the Sri Lankan Navy (CB 146 at [22]-[23]).
The Tribunal accepted the applicant’s revised claims and evidence that most of the claims and events set out in the applicant’s initial Protection visa application did not actually occur. However, the Tribunal did not accept as reasonable the applicant’s explanation that he did not actually make those claims, given the documents in support of his Protection visa application had been prepared with the assistance of a migration agent. Consequently, the Tribunal found this indicated the applicant had fabricated aspects of his claims and he was not a credible witness, and it did not accept that other claims made by the applicant were true and found this further impacted adversely on his credibility (CB 149 at [32]-[33]).
The Tribunal did accept the applicant was a Tamil from Udappu who made no claims in respect of his religion or any involvement or association with the LTTE. The Tribunal also accepted that the applicant worked as a fisherman and security guard at a prawn farm, that in 2009 his home was twice searched by Sri Lankan authorities, and that he was assaulted once when he did not have a fishing license (CB 150 at [36]-[38]). The Tribunal noted these events had occurred years prior and had no further consequences. It found the Sri Lankan authorities were enforcing a law of general application in relation to the fishing license and accepted the applicant’s evidence he had encountered no other problems in Udappu since that occurrence (CB 150 at [38]-[39]).
Whilst accepting that Sri Lankan authorities had dealt harshly with Tamils associated with the LTTE, the Tribunal rejected the applicant’s claim that simply being a Tamil attracted adverse attention or harm from the authorities. It also relied on the absence of any claims by the applicant to have had any LTTE association or to have been arrested or detained on that basis. The Tribunal found there was nothing in the applicant’s accepted profile to suggest the authorities would perceive him to have LTTE links and it also relied on the fact the civil war in Sri Lanka had ended (CB 150 at [40]).
Finally, the Tribunal accepted the applicant, if returned to Sri Lanka as a failed asylum seeker, would likely be questioned, arrested, held on remand for three days in unsanitary conditions and fined. The Tribunal found, however, that such action by the Sri Lankan authorities lacked any requisite Convention nexus and was the result of a law of general application that was applied in a non-discriminatory manner. The Tribunal also did not accept that this constituted “serious harm” for the purposes of s.91R of the Migration Act (CB 151 at [43]) or “significant harm” for the purposes of s.36(2)(aa) of the Migration Act (CB 152 at [47]).
Current Proceedings
The applicant sought review of the Tribunal’s decision in this Court by way of application filed on 22 July 2013. The Application seeks the following orders:
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. New RRT Hearing.
4. Not to send me Sri Lanka until my case is over.
The Application pleaded the following ground:
Tribunal accepted that I may be held in prison for up to several days upon my return but Tribunal did not apply correct test to their conclusion that this brief period of detention does not amount to serious or significant harm.
Despite being granted leave to do so, the applicant elected not to amend his Application, file any evidence in support or any written submissions. It should be noted that the applicant also participated in the NSW RRT Legal Advice Scheme and received free advice from the panel lawyer allocated to his case.
Applicant’s Submissions
The applicant elected not to file any written submissions in support of his application. At the final hearing, when asked if he had any oral submissions to make in support of his Application, the applicant stated:
If I return to my home country I will be arrested and detained and tortured at the airport. I will be beaten up badly, I will be put in a camp and mistreated very badly there, for the reason that I left that country illegally and entered this country without a visa in a boat – for having come here illegally.
The applicant was informed that the purpose of the hearing of the matter in the Federal Circuit Court was not to revisit the merits of his claims before the Tribunal, but to establish whether there was an error of law in its dealing with the applicant’s claim. The applicant stated in response:
My claim revolved around suspicions of having links with the LTTE, and I also had problems in doing my job there and as a result I was arrested on suspicion of having links with the LTTE movement.
Minister’s Submissions
The Minister submits that the Application pleads a sole ground of review which should be split into two limbs, namely that the Tribunal erred in finding that:
a)Any period of detention the applicant might face upon his return to Sri Lanka does not amount to “serious harm” (the “First Limb”); and/or
b)Any period of detention the applicant might face upon his return to Sri Lanka does not amount to “significant harm” (the “Second Limb”).
The First Limb
The Minister contends that two points should be made in respect of the First Limb of the Application. The first is that it must be borne in mind that, for the purposes of Australian law, the concept of “persecution” in Article 1A(2) of the Refugees Convention is qualified by s.91R of the Migration Act. In particular, s.91R(1) provides that for the purpose of the Migration Act, Article 1A does not apply in relation to persecution for one or more of the Convention reasons unless:
a)That reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
b)The persecution involves serious harm to the person; and
c)The persecution involves systematic and discriminatory conduct.
The Minister argues that, contrary to what the applicant contends, the applicant’s Convention-related claims did not fail simply because the Tribunal concluded that any “harm” in the form of detention the applicant faced upon his return to Sri Lanka did not amount to “serious harm”. The Minster submits it is to be recalled that the Tribunal concluded that the claimed social group of “returned asylum seekers” did not exist (CB 151 at [42]) (such that the harm feared would not have a Convention nexus and that the applicant would only be detained pursuant to a law of general application relating to illegal departure from Sri Lanka that is not applied in a discriminatory manner).
Secondly, and in any event, the Minister contends the question of what constitutes “serious harm” within the meaning of s.91R(1) of the Migration Act is a question of fact and degree for the decision-maker (see VBAS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 516 ALR 307 at [26]-[28] per Crennan J; VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32 at [24]). It was entirely open to the Tribunal, as the sole arbiter of facts, to conclude that a short period of detention would not amount to “serious harm”.
The Second Limb
The Minister submits that in order to meet the criterion for the grant of a Protection visa under s.36(2)(aa) of the Migration Act, the applicant is required to demonstrate that there is a “… real risk that the applicant will suffer significant harm “. Section 36(2A) of the Migration Act in turn provides that:
36(2A) A non-citizen will suffer significant harm if:
…
(c) the non-citizen will be subjected to torture
(d) the non-citizen with be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
The Minister submits each of the types of “significant harm” referred to in the preceding paragraph are in turn defined in s.5 of the Migration Act. Relevantly, the definitions of “torture” and “cruel or inhuman treatment or punishment” each require and “act or omission” by which pain or suffering is intentionally inflicted. Similarly, the definition of “degrading treatment or punishment” requires and act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.
The Minister argues that, in light of the above definitions of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” it was open for the Tribunal to conclude that any period of detention the applicant might face upon his return to Sri Lanka would not amount to “significant harm”.
Conclusion
The Minister submits, that for the reasons stated above, the applicant’s sole ground of review in his Application must fail and, accordingly, the Application should be dismissed with costs.
Consideration
This is an application seeking review of a decision of the Tribunal refusing to grant the applicant a Protection (Class XA) visa. The Application pleads a sole ground, reproduced at [14] above. I note the applicant received pro bono legal advice under the provisions of the NSWRRT Legal Advice Scheme and was granted leave to amend his application, file evidence and submissions, but elected not to do so.
The Application, essentially, pleads that the Tribunal failed to apply the correct test to its conclusion that upon returning to Sri Lanka the applicant being held in prison for a few days would not amount to serious or significant harm.
I propose to address the applicant’s ground of review in the same manner as Mr Smith, representing the Minister, has, by addressing it in two limbs.
The First Limb
The first limb of the applicant’s pleaded grounds claims that the Tribunal erred in its finding that any period of detention potentially faced by the applicant on his return to Sri Lanka would not amount to “serious harm”. The applicant elected not to make any more detailed submissions in respect of this limb of his ground of review.
Section 91R of the Migration Act states:
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The Tribunal made its findings in respect of the applicant’s return to Sri Lanka at [41]-[44] of its Decision Record (CB 151). It found at [42]-[43] that:
42. As set out under Relevant Law above, one or a combination of the Convention grounds must be the essential and significant motivation for the persecution. In the present circumstances the motivation of the Sri Lankan authorities in arresting, detaining for a few days and fining people is not for reasons of a Convention ground but the implementation of a law of general application relating to illegal departure from Sri Lanka. I have considered whether there is any element of membership of a particular social group and cannot identify one. I do not accept there is a particular social group of failed asylum seekers as such a group is necessarily in these circumstances defined by the harm they fear. Further, prosecution in such circumstances is a legitimate action by the authorities. There is no evidence that the law, any period of detention and fine, or the condition of detention, are being applied in a discriminatory manner.
43. I have also considered whether being questioned, detained for a few days and fined is of the type of seriousness of harm as could be considered as serious harm amounting to persecution as meant by section 91R(1)(b) of the [Migration] Act. I find that it is not of such seriousness.
I accept that the MR Smith has correctly addressed this issue in his written submissions which have been paraphrased at [20]-[21] above. The Tribunal concluded at [42] (see [31] above) that the claimed social group of “returned asylum seekers did not exist” such that the harm feared had a convention nexus. Further, it found the applicant would only be detained on his return to Sri Lanka pursuant to a law of general application which relates to illegal departure from Sri Lanka and is not applied in a discriminatory manner.
In VDAU (supra) their Honours Ryan, Lindgren and Sundberg JJ stated at [24]:
However, we have been unable to discern in the Tribunal’s reasons any misunderstanding of what is capable, as a matter of law, of amounting to “being persecuted” within Art 1A(2) as qualified by s 91R of the Act. Whether particular conduct of which an applicant is shown to have a well-founded fear would constitute persecution properly understood is a question of fact. …
Her Honour Crennan J in VBAS (supra) stated at [28]-[29] of her reasons:
28. Given the construction of s 91R(2)(a) as a reference to “threat” in the sense of “danger” or “risk”, it follows that when a tribunal finds such threats have been made, that does not foreclose further inquiry to determine whether such threats amount to “serious harm” within the meaning of the subsection. Whether such threats are sufficiently serious to amount to persecution within the meaning of Art 1A(2) of the Convention and serious harm within the meaning of s 91R is a question of fact and degree for the tribunal: see Mandavi v Minister for Immigration and Multicultural Affairs [2002] FCA 70 at [13] and [25] (Carr J); Ahwazi v Minister for Immigration and Multicultural Affairs [2001] FCA 1818 at [45] (Carr J); Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 268 (Hill J), which was of assistance to Conti J in the context of s 91R of the Act in NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411 at [3].
29. …. As a consequence, the tribunal made a finding of fact, that the threats did not involve “serious harm”. The tribunal is the final arbiter of such an issue and no error arises as alleged.
Accordingly, no error of law arises from the Tribunal’s decision in respect of the first limb of the applicant’s sole pleaded ground and it follows that it must be dismissed.
The Second Limb
The applicant’s second limb of his sole ground of review pleads a failure by the Tribunal to consider his claim in respect of s.36(2)(aa) of the Migration Act in that any period of detention the applicant is likely to face on his return to Sri Lanka would not constitute “significant harm”. The applicant again elected to make no further submissions in respect of this limb of his ground of review.
Section 36(2)(aa) of the Migration Act states:
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
…
Section 36(2A) of the Migration Act relevantly states:
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
Each type of “significant harm” referred to above at [38] is in turn defined in s.5 of the Migration Act. The definitions of “torture” and “cruel or inhuman treatment or punishment” each require an “act or omission” by which pain or suffering is intentionally inflicted. The definition in s.5 of “degrading treatment or punishment” similarly requires an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.
The Tribunal, in its Decision Record, addressed the applicant’s claim in respect of this issue at [45]-[47] of its Decision Record (CB 151-152). At [47] it stated:
47. Whilst I accept that there will be adverse consequences of the applicant returning to Sri Lanka I do not accept that such consequences as being questioned, detained in cramped and unsanitary conditions for a few days and fined are singularly or collectively of the type or seriousness as could be considered as significant harm.
I accept that Mr Smith has correctly addressed this limb of the applicant’s ground of review. It was open to the Tribunal, in light of the definitions noted at [39] above, to come to the conclusion that any period of detention the applicant might face on his return to Sri Lanka does not amount to “significant harm” for the purposes of s.36(2)(aa) of the Migration Act. Accordingly, this limb of the ground of review must also fail.
Applicant’s Oral Submissions
The applicant’s oral submissions made at the hearing are reproduced at [16]-[17] above. These submissions invite the Court to engage in impermissible merits review. Her Honour Farrell J stated in SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 833 at [21]:
So long as the Tribunal applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review, the merits of a case, including matters of weight to be given to items of evidence and the credibility to be attached to witnesses are for the Tribunal to determine: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609.
Accordingly, the applicant’s oral submissions must also fail.
Conclusion
Neither the sole ground of review contained in the Application nor any oral submission made by the applicant at the hearing reveals any error of law on the part of the Tribunal. Further, on a fair reading of the Tribunal’s Decision Record no error is apparent. Consequently, the Application should be dismissed and the applicant ordered to pay the Minister’s costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 28 February 2014
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