SZTCW v Minister for Immigration

[2014] FCCA 363

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCW v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 363

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal – whether application for review of Refugee Review Tribunal considered applicant’s claims – no jurisdictional error – application dismissed.

Applicant: SZTCW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1722 of 2013

Judgment of: Judge Manousaridis

Hearing date: 29 November 2013

Delivered at: Sydney

Delivered on: 28 February 2014

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1722 of 2013

SZTCW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In an application filed on 25 July 2013, the applicant, who is not legally represented, seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a protection visa. The only ground stated in the application is that the applicant should be given a “chance for submitting evidence”. That does not state an arguable ground of review.

2. At the hearing, the applicant submitted that the decision of the Tribunal should be set aside because the Tribunal incorrectly found that if the applicant returned to Sri Lanka he would face no problems. The applicant also submitted he will face problems if he returns to Sri Lanka because there are problems for people of Tamil ethnicity and that, although the war in Sri Lanka has come to an end, Tamil people do not have freedom in their country. The applicant said he made these submissions before the Tribunal, but the Tribunal was wrong not to accept them.

3. These submissions also do not state an arguable claim for relief. They only claim the Tribunal was incorrect in not accepting the applicant’s claim. It is for the Tribunal, and not for this Court, to determine whether the applicant should be granted a protection visa. The only role of this Court on an application for judicial review is to hear and decide claims that decisions made by the Tribunal were made in excess of jurisdiction.

4. The applicant also appeared to submit that the Tribunal did not take into account a central aspect of the applicant’s claim, namely, his uncle’s visiting the applicant at his home, and the series of events the uncle’s visit set in motion. This submission, if made out, would disclose a jurisdictional error. Accordingly, in these reasons, I consider whether the Tribunal considered the applicant’s claims. That requires me to first identify the grounds on which the applicant claimed a protection visa, and the Tribunal’s reasons for rejecting that claim.

The applicant’s claim for a protection visa

1. The applicant is a citizen of Sri Lanka and member of the Tamil ethnic group.

2. In his application for a protection visa,[1] the applicant claimed as follows: he was a fisherman in Udappu and Trimcomalee; members of the Sri Lankan army and navy regularly harassed the applicant in the course of his employment as a fisherman; the harassment particularly occurred at army checkpoints through which the applicant had to pass every day; the harassment consisted of the army shouting abuse at the applicant, and accusing him of being a member of the Liberation Tigers of Tamil Eelam (LTTE); the applicant was also stopped by the navy on his boat when at sea and was asked to explain what he was doing and to produce identification; the applicant was threatened many times with beatings by the navy when at sea, and by the army at checkpoints; the applicant was bashed a number of times by members of the navy; and he was hit by the navy on one occasion because he was in breach of an unofficial curfew.

   [1] CB pages 45-49

3. The applicant also claimed that after his uncle (who was in fact the applicant’s cousin) visited the applicant at his home, a member or members of the Criminal Investigation Department (CID) visited the applicant and informed him they believed the uncle was a member of the LTTE; after the applicant denied having any knowledge of the uncle having any involvement with the LTTE, the CID warned that if they were to find the applicant was lying, they would return and take him away for interrogation; the applicant then went fishing, but when he returned at night, he found his wife crying because, so she told the applicant, four people identifying themselves as CID bashed on the applicant’s door demanding to know the applicant’s whereabouts; that caused fear in the applicant and led to his deciding to flee Sri Lanka.

4. The applicant claimed he feared that if he were to return to Sri Lanka he would be taken in for questioning by the CID about his knowledge of his uncle’s activities, and that he would be tortured and possibly killed by the CID as a suspected LTTE sympathiser or member.

The Tribunal’s decision and reasons

1. At the hearing before the Tribunal, the applicant was questioned about his claims concerning harassment by the Sri Lankan army and navy.[2] The Tribunal found, however, that the evidence the applicant gave at the hearing was “markedly different from that communicated in his statement”.[3] He told the Tribunal that since the end of the conflict in 2009 he has not had to show his identification at the checkpoints between Trincomalee and Udappu, and that he has been able to support his family through fishing. On the basis of this evidence the Tribunal concluded that the claimed harassment of the applicant was not such as to threaten his capacity to subsist.[4]

   [2] CB169, [14]

   [3] CB169, [14]

   [4] CB169, [14]

2. The Tribunal accepted the applicant’s claim that at a checkpoint in Udappu he had been shouted at because he had forgotten his identification; but the Tribunal did not consider this incident amounted to serious harm or that it was a ground for the applicant fearing a real chance of serious harm in the reasonably foreseeable future in Sri Lanka.[5] The Tribunal also asked the applicant, and the Tribunal accepted the applicant’s evidence, that he was assaulted by a member of the navy because the applicant failed to observe the curfew. The Tribunal found that this was the only incident involving physical harm to the applicant the applicant recalled to the Tribunal, and that, considered alone or in the context of what the Tribunal accepts as the applicant’s circumstances, the incident did not constitute serious harm.[6]

   [5] CB 169-170, [16]

   [6] CB170, [17]

3. The Tribunal also asked the applicant, and the Tribunal accepted the evidence the applicant gave in response, about the procedure by which the applicant obtained a fishing pass. That occurred by his handing in his identification card at the commencement of fishing and, at the end of fishing, exchanging the pass for the identification card. The Tribunal found this evidence did not reveal any harm or give rise to a serious risk of harm.[7]

   [7] CB170, [18]

4. The Tribunal asked the applicant about his claim surrounding the uncle’s visit and the events the applicant claimed that visit gave rise to. The evidence the applicant gave is recounted in detail in the Tribunal’s reasons.[8] After setting out that evidence, the Tribunal said:[9]

   The Tribunal considers the above evidence cumulatively regarding the visit by V to Udappu and his stay at the applicant’s home in Udappu to be unreliable and lacking in credibility in significant respects, casting doubt on the truth of the applicant’s claims that: V or any other relative from Mullaithivu stayed at his home for 2 days in May 2012 or at any other time; and that the applicant has become a target of the CID’s adverse interest in connection with that relative and/or visit.

   [8] CB171, [21]

   [9] CB172, [22]

5. The Tribunal then related evidence the applicant gave about the circumstances in which he said he left Sri Lanka, and in particular, his returning to his home two days after he claims the CID came looking for him and his travelling through checkpoints to farewell his mother and his aunt. The Tribunal concluded:[10]

   The Tribunal does not consider the applicant’s claimed willingness to cycle past checkpoints some 2 days after he claims the CID had visited his house prompting such fear that he decided to flee the country to be credible.

   [10] CB172, [23]

6. Having considered the evidence the applicant gave about the circumstances in which he claimed he fled Sri Lanka, the Tribunal considered the applicant claimed fear of persecution because of his Tamil ethnicity,[11] his being imputed with the political opinions of the LTTE,[12] his being a failed asylum seeker,[13] and the applicant’s having departed Sri Lanka illegally.[14] In each case, the Tribunal concluded it was not satisfied that any of these matters gave rise to a well-founded fear of persecution, whether considered alone or together. On the basis of these findings, the Tribunal concluded it was not satisfied the applicant faced a well-founded fear of persecution for a Convention reason.[15]

   [11] CB173-173, [26] – [29]

   [12] CB174, [30] – [34]

   [13] CB174-177, [35] – [44]

   [14] CB177-178 [[45] – [48]

   [15] CB178-179, [49]

7. Finally, the Tribunal considered whether the applicant was eligible for Complementary Protection, and concluded that he was not. The Tribunal’s conclusion was largely based on the matters on which it relied for concluding the applicant did not have a well-founded fear of persecution for a Convention reason.

Did the Tribunal consider the applicant’s claims?

1. From what I have recorded above, it is clear the Tribunal considered the applicant’s claims. And I am satisfied it did so according to law.

2. The Tribunal affirmed the delegate’s decision principally because it did not accept the central aspect of the applicant’s story, namely, the uncle’s visiting the applicant, and the subsequent investigation and threats by the CID. It was reasonably open to the Tribunal not to accept the central aspect of the applicant’s claim. To the extent the Tribunal relied on other matters for affirming the delegate’s decision, the Tribunal identified the information and reasoning on which it relied. It was reasonably open to the Tribunal to arrive at the conclusions to which it arrived on the basis of the information the Tribunal identified.

Disposition

1. It follows that the application must be dismissed with costs.

2. I propose to fix costs in the amount of $5,500.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  28 February 2014