SZTDY v Minister for Immigration

[2013] FCCA 2156

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTDY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2156

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka – Tribunal making adverse credibility findings – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SZTDY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1810 of 2013

Judgment of: Judge Driver

Hearing date: 12 December 2013

Delivered at: Sydney

Delivered on: 12 December 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S Sangha

Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the first respondent is amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1810 of 2013

SZTDY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 27 June 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Sri Lanka.  He claimed to fear persecution on numerous bases, including his ethnicity and imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), his Hindu religion and membership of the particular social groups of returned Tamil failed asylum seekers and Tamils involved in land disputes.

2. The applicant applied for the visa on 27 August 2012.  The delegate refused to grant the visa on 1 March 2013.  The applicant sought review before the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing.  The applicant accepted that invitation and attended the Tribunal on 16 May 2013 with his registered migration agent.  The firm representing the applicant made detailed submissions to the Tribunal. 

3. The Tribunal in its decision expressed credibility concerns with the applicant’s evidence.  First, the Tribunal noted clear and largely unexplained inconsistencies between the claims he had made at various times about incidents in which he suffered harm in Sri Lanka.   The Tribunal took into account explanations for those inconsistencies, including mental difficulties and the fact that the applicant is young and unsophisticated, which he undoubtedly is, and that he was confused about specific matters put to him.

4. The Tribunal also took into account documents submitted by the applicant at the Tribunal hearing, including letters from his local member of parliament in Sri Lanka and his father.  The Tribunal found those documents to be generally self-serving.  The Tribunal was not satisfied that the applicant’s account of his experiences in Sri Lanka was credible.  The Tribunal did not accept his claim that he suffered harm at the hands of Muslim gangs or Muslim members of the Sri Lankan CID.  The Tribunal did not accept that his family had been threatened with violence by Muslims in order to make them leave their land or that his family ever went into hiding, remained indoors or were forced to spend their nights away from their home or that the CID or anyone else was currently looking for the applicant.

5. The Tribunal accepted that the applicant’s father is the president of a local Hindu temple and that he has been active in rebuilding the temple and that he may be regarded as a leader among Tamils in the village.  The Tribunal did not accept that that activity had brought the applicant’s father into conflict with local Muslims or that because of this, Muslims wished to harm the applicant, or indeed that there was any significant conflict between the Hindu and Muslim communities in the village. 

6. The Tribunal accepted that the Sri Lankan army took over the applicant’s father’s house and land during the civil war and that they have refused to return it.  The Tribunal noted that this harm was directed at the applicant’s father rather than him.  Additionally, the Tribunal noted that the applicant’s family was given a new house constructed by a non-government organisation as part of a resettlement program, and the Tribunal was not satisfied that the applicant can be seen as having suffered any particular harm through these circumstances. 

7. The Tribunal accepted that the applicant and his father may have been subjected to questioning at various times during the Sri Lankan civil war and its aftermath.  The Tribunal was not satisfied that this evidenced any particular suspicion about the applicant or his family held by the Sri Lankan authorities.  At [22] of its reasons[1], the Tribunal found that these credibility concerns led to a conclusion that the applicant was not a witness of truth.  The Tribunal then considered and rejected in turn the applicant’s claims based on his imputed political opinion, his Tamil race, his asserted particular social group membership and his Hindu religion.

   [1] Court Book, page 208

8. The Tribunal also found that the applicant did not qualify for complementary protection. 

9. These proceedings began with a show cause application filed on 2 August 2013.  That application contains the bald assertion that the decision of the Tribunal was affected by a legal error.  The applicant promised more details would be provided by his legal representative. 

10. The Minister had previously consented to an extension of time of one day for the filing of the application. 

11. The application is supported by a short affidavit, which I received.  I also have before me as evidence the court book filed on 5 September 2013. 

12. The applicant attended a directions hearing before me on 5 September 2013 with the assistance of a Tamil interpreter.  At that time, I gave the applicant leave to file and serve an amended application and further evidence.  He has not taken up that opportunity, although I note that he has had the benefit of advice under the Minister’s former panel advice scheme via Mr Cameron Jackson, who provided advice on 5 November 2013.  At today’s hearing, I explained to the applicant that he had not articulated with any specificity any legal error by the Tribunal that might arguably amount to a jurisdictional error.

13. The applicant struggled to comprehend what I was seeking from him.  I asked him what he thought was wrong with the Tribunal decision.  The applicant told me that he felt the Tribunal misunderstood his evidence, including the letter from his father which had been tendered to the Tribunal.  He also believes that letter may not have been properly translated.  The applicant pointed out that there had been several changes to his representation.  That is correct.  The applicant received assistance under the former IAAAS scheme.  His case was assigned to the firm of Australian Migration Options Proprietary Limited in Adelaide.  It is apparent that various people in that firm dealt with the applicant’s case at various times before the Minister’s Department and the Tribunal.  Based upon what appears in the court book, it seems to me that that assistance was of a high professional standard.  However, I do not rule out the possibility that the numerous changes in the individuals handling his file may have had some impact on the consistency of his claims.  That in turn may possibly have had some impact on the Tribunal’s credibility concerns.

14. This is, however, only a hypothetical possibility.  The Tribunal’s decision appears to be a careful and thorough analysis of the applicant’s claims.  While it is possible that he may have been better served by fewer changes in his representatives in the firm assisting him, it seems to me that he was better off with that representation than without it.  I have concluded that whatever disadvantage he may have suffered from the changes in representation, no arguable case could be made that those changes disabled the Tribunal’s review function.

15. I asked the applicant whether he had raised with the Tribunal any concern over the changes in his representation.  He told me that he had not.  Accordingly, there was no basis upon which the Tribunal could have been expected to consider the potential impact of changed representation on the credibility of the applicant’s claims. 

16. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.  

17. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

18. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  The applicant did not wish to be heard on costs.

19. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

20. I will direct that the name of the first respondent is amended to “Minister for Immigration and Border Protection”.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  13 December 2013