SZTEQ v Minister for Immigration

[2014] FCCA 2387

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2387

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it misapplied the test for complementary protection and breached s.424A of the Migration Act 1958.

Legislation:

Migration Act 1958, ss.5, 36, 424A, 425, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZTEQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1902 of 2013

Judgment of: Judge Cameron

Hearing date: 29 July 2014

Date of Last Submission: 29 July 2014

Delivered at: Sydney

Delivered on: 29 July 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,120.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1902 of 2013

SZTEQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 24 June 2012.  On 20 November 2012 he lodged an application for a protection visa in which he alleged that he feared persecution in Sri Lanka.  On 27 March 2013 that application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out on pages 3-10 of the Tribunal’s decision.  Relevantly, they were as follows.

Entry interview

1. In an entry interview on 4 August 2012, the applicant, who is a Hindu Tamil, claimed that the main reason he came to Australia was because Tamils had no privileges in Sri Lanka, no access to development and were put behind others when being considered for anything.  He stated that he had not suffered physically but wanted a good future in Australia and believed that it would welcome him.

Protection visa application

1. In a statutory declaration attached to his protection visa application, the applicant made the following claims:

   a)apart from a period of three years when he was working in Saudi Arabia, until his departure for Australia in June 2012 he had lived in Sri Lanka.  His wife and daughter lived in Sri Lanka and his two sons lived in India;

   b)in Sri Lanka he had lived in a predominately Sinhalese village where his family was the only Tamil family.  His family had been harassed and discriminated against and his children had been beaten, sworn at and ostracised at school.  He had complained to the police after his children were beaten and abused and he was summonsed to attend the police station the next day but the other party did not attend.  The police did not make good on their undertaking to contact him again, which indicated to him that the authorities would not protect his family even if the Sinhalese attacks escalated;

   c)in May 2011, he took his children to India because he was worried about their safety.  He stayed with them for a month before he returned to Sri Lanka;

   d)after he returned to Sri Lanka, Sinhalese people started to throw fire crackers into his yard and abused him because of his ethnicity and because they considered themselves superior to Tamils.  He was never beaten by the Sinhalese;

   e)he feared that if he returned to Sri Lanka he would be harassed and perhaps beaten or killed by the Sinhalese.  He might also be subjected to degrading or humiliating treatment.  The police would not assist him because they usually turned a blind eye to what the Sinhalese did;

   f)he feared that he would be targeted by the authorities and subjected to questioning, torture, disappearance and death as a returnee to Sri Lanka from Australia.  Returnees who spoke about the reality of Sri Lanka in foreign countries were not welcomed; and

   g)he could not relocate to other areas within Sri Lanka as he would be persecuted, humiliated and subjected to abuse because he is a Tamil.

2. At an interview with the Minister’s delegate on 25 March 2013 the applicant relevantly made the following additional claims:

   a)there were fifty to sixty families in his village.  His was the only Tamil family although there were some Muslim families.  He had chosen to live there because it was his father’s land and the “real problems” only began after the civil war ended in 2009;

   b)he took his younger son to India at the end of 2010 after the police took no action when his son was abused and beaten with a cricket bat by Sinhalese youths during a game of cricket;

   c)in February 2012 he sent his eldest son to India after he was abused by Sinhalese and accused of being involved with the Liberation Tigers of Tamil Eelam (“LTTE”);

   d)he had been targeted by the Sinhalese.  After he sent his children to India, he believed that the Sinhalese had been following him in order to beat or kill him;

   e)his daughter was living and studying in Sri Lanka and had experienced no problems.  His wife and daughter had not travelled to India because his relatives in that country were refugees and could only care for his sons.  He and his wife could not register as refugees in India; and

   f)he could not relocate within Sri Lanka because would have to sell his property.  If he relocated to a Tamil area the security forces would be told and they would follow him and question him on his movements.

Tribunal proceedings

1. On 11 July 2013 the Tribunal received a submission in which the applicant’s advisers reiterated the applicant’s claims, canvassed legal issues, referred to additional country information and relevantly submitted that:

   a)the applicant feared persecution because of his Tamil ethnicity, imputed political opinion as a supporter of the LTTE and membership of the particular social group consisting of “failed asylum seekers from a western country”;

   b)the applicant’s situation was distinct from that of other Tamils as he was the head of the only Tamil family in his village.  He would attract adverse attention if he returned and authorities were known to visit the homes of returnees;

   c)as a Tamil returnee from the West who would be perceived to have spoken out against the government, the applicant would be deemed a dissident by the authorities and harmed. He and his family had regularly been taunted and called “Tiger”, implying that he was a member of the LTTE; and

   d)the applicant would be detained for questioning on the circumstances in which he left Sri Lanka.  His questioning would probably include torture or cruel, inhuman or degrading treatment or punishment.

2. On 16 July 2013 the applicant attended a hearing before the Tribunal and gave the following additional evidence:

   a)he left Sri Lanka because he had problems in his village with political groups.  In March 2005 he was attacked by individuals working for a local politician.  They cut him with a knife, leaving scars on his neck and shoulders.  He had not mentioned the attack previously because he had feared that his wife and daughter would be harmed in Sri Lanka;

   b)his attackers had been appointed during the elections to threaten others and they attacked him because he was a supporter of the United National Party (UNP).  They later attacked his son with a cricket bat.  In subsequent elections they had shouted outside his home and celebrated the death of the LTTE leader by letting off fire crackers.  They had also addressed him in the street in filthy language;

   c)he refused to name his attackers because they were more influential than the local politician who had appointed them and he was afraid for his wife and daughter;

   d)after he had sent his sons to India, “these people” had been very angry with him.  His wife had given birth two weeks before he left for Australia and she told him that it would be better that he protect his life by going away to Australia.  He later denied the allegation concerning his wife’s asserted confinement saying that she had been recovering from a hernia operation and that his daughter was seventeen years of age;

   e)after he arrived in Australia, employees of the local politician began coming to his house at night and questioning his wife.  They knew that he was in Australia.  His wife was afraid and, with their daughter, slept at a Muslim friend’s house at night in order to avoid them.  She had applied for a visa to travel to India and planned to go there with their daughter in July 2013.  He later stated that his daughter had already left Sri Lanka;

   f)people were still angry and looking for him because he had voted for the UNP and might suspect that he had disclosed information about them to the authorities in Australia;

   g)he feared that the Sri Lankan government would make enquiries about him and about what he had said in Australia and would assume that he had complained about them;

   h)he had legally obtained a genuine passport in his own name for his travel to Saudi Arabia and had not experienced any problems at the airport when travelling to or returning from Saudi Arabia and India.  He had never had any problems with the Sri Lankan authorities, including the police, army or intelligence service.  He had never been harmed in the past because of a suspicion that he was connected with the LTTE;

   i)he would not be able to flee to India because he would only be able to obtain a three month visa and there was not enough space in the house rented by his brother-in-law’s children; and

   j)he would not be able to relocate to a neighbouring town which was exclusively Tamil because that town was also unsafe and he had witnessed white van abductions and shootings close to it.  The government was also not protecting people.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal was not satisfied that the applicant or members of his family had ever suffered harm in their village because of political activities or a political opinion in favour of the UNP, because of their Tamil ethnicity or for any other reason.  While it accepted that the applicant was of Tamil ethnicity, that his children might have moved to India and that his wife planned to join them, it was not satisfied that this was because of any fear of suffering harm if they had remained in their village.  That conclusion was based on the finding that the claims at the heart of the applicant’s application, which concerned his political views and activities, the attack by his political enemies, and the link this had with his son and wife’s subsequent harassment, had emerged late and contained implausibilities which went directly to the applicant’s credibility and general reliability as a witness.  In this connection, the Tribunal:

   i)referred to the applicant’s “last-minute” change to his claims which had not been foreshadowed prior to its hearing.  It referred to the applicant’s reason for not disclosing the claims earlier but was not satisfied that it provided any convincing reason as to why he would have failed to mention such obviously relevant and important matters;

   ii)considered that his claims at its hearing were not substantiated by any external source and were marked by a number of implausibilities.  It found that even if his claims of political activism with the UNP were credible, and it did not accept that they were, it was not satisfied that the level of his alleged involvement would plausibly explain the “unremitting enmity” against him.  It was not satisfied that it was plausible that the applicant would be afraid to name his attackers but name their employer, that he was able to live and work in his village without further harm after 2005 or that his wife was able to escape the group’s attention by simply staying with a nearby neighbour at night; and

   iii)considered that if the applicant had faced serious harm after 2005 he would have escaped the harm by remaining in India with his children.  It was not satisfied that his explanations as to why he could not stay in India plausibly explained his failure to take such an obvious step to find safety given the ability of his other family members to remain in India for extended periods of time;

   b)the Tribunal was not satisfied that the Sri Lankan authorities had ever had any reason to suspect the applicant of holding a political opinion in favour of the LTTE or against the government or that such an opinion would be imputed to him on his return to Sri Lanka.  In this connection the Tribunal:

   i)noted that the applicant had not claimed to have ever been involved with the LTTE, had never encountered any difficulties with the Sri Lankan authorities, had never been accused of any LTTE involvement, had been able to retain and renew his passport and had travelled in and out of Sri Lanka with no difficulties.  It noted the applicant’s claim that his family had been taunted with the name “Tiger” but, given its credibility findings, was not satisfied that any weight could be placed on his claims to have suffered harm at the hands of Sinhalese neighbours;

   ii)was not satisfied, based on country information before it, that the applicant would be suspected of holding a pro-LTTE or anti-government opinion simply because he was a Tamil; and

   iii)accepted that the authorities would probably know that the applicant had unsuccessfully sought protection in Australia should he return to Sri Lanka but did not consider that the country information supported a conclusion that Tamils who sought protection in Australia were automatically suspected of having links with the LTTE.  It was also not satisfied that the applicant demonstrated any reason to believe that he would, in fact, be suspected of having disclosed information to the Australian government;

   c)it accepted that there was sufficient country information to indicate that until May 2009 Sri Lankan Tamils had an appreciable risk of harm simply because of their ethnicity and that those who lived in the North and Eastern provinces were more likely to be targeted.  However, based on recent country information, it was not satisfied that Sri Lankans of Tamil ethnicity continued to face harm simply because of their ethnicity or that their geographic origins put them at greater risk of such harm; and

   d)the Tribunal accepted that the applicant could be said to have been a member of a particular social group consisting of “failed asylum seekers from a western country” but was not satisfied that he would suffer serious harm on arrival in Sri Lanka or at any subsequent point because of his membership of this social group.  In this connection, the Tribunal:

   i)referred to its earlier finding that it was not satisfied that the applicant’s personal circumstances had ever given rise to a suspicion that he had supported or had had any involvement with the LTTE;

   ii)did not consider that being questioned at the airport, even for extended periods of time, and being detained for a few days in cramped or unsanitary conditions while on remand awaiting a bail hearing, should be characterised as serious or significant harm and did not consider that the applicant would be at risk of harm on return to his village after leaving the airport; and

   iii)was not satisfied that there was a real chance that the applicant would suffer imprisonment or that he would be subjected to penalties other than a fine if found to be in breach of Sri Lanka’s immigration laws.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal fell into jurisdictional error in failing to apply the correct test for degrading punishment in relation to me breaching the Sri Lankan Immigration and Emmigration [sic] Act in that I illegally departed Sri Lanka and would be questioned and arrested at the airport on my arrival, my detention for a few days in possibly cramped and unsanitary conditions which on remand awaiting a bail hearing or subsequently fines.

   2.The issue of complimentary [sic] protection was not assessed as required by the Migration Act.

   3.I have information to submit if court allows me that how Tamil failed asylum seekers were badly mistreated on their arrival at the airport and/or in Colombo/Negambo.

2. In his affidavit filed with the initiating application, the applicant also said:

   The RRT fell into jurisdictional error in not putting to me fully for comment the DAFT [sic] reports about failed Tamil asylum seekers who are departed [sic] to Sri Lanka.

Ground 1

1. In the first ground of the application the applicant alleged that the Tribunal had not applied the correct test when concluding that he would not suffer degrading treatment if arrested and questioned at the airport in Sri Lanka or if subsequently detained on remand. Although the Tribunal did not at any point discuss in any detail the tests which it had to apply in deciding whether the applicant was entitled to, or met the criteria for the grant of, a protection visa, in paras.5 and 6 of its reasons, it did specifically refer to those sections of the Act where the relevant criteria are to be found.

2. It can be assumed, given the Tribunal’s experience, that it was aware of the statutory tests and, in particular, the definition of degrading treatment found in s.5 of the Act. This inference is reinforced by the reference in para.7 of the Tribunal’s reasons to Ministerial Direction Number 56 and to that part of Procedures Advice Manual 3 dealing with the complementary protection guidelines.

3. In circumstances where I am satisfied that the Tribunal was aware of the appropriate tests, I conclude that the essence of the first ground of the application was, in substance, no more than a challenge to the Tribunal’s finding of fact that the applicant would not be at risk of suffering significant harm were he returned to Sri Lanka.  As explained at the hearing of this application and earlier in these reasons, the Court’s role is not to rehear the applicant’s protection visa application or to substitute its own view of the applicant’s application for the one reached by the Tribunal.

4. The first ground of the application does not demonstrate jurisdictional error on the part of the Tribunal.

Ground 2

1. The allegation in the second ground of the application, that the Tribunal failed to consider the applicant’s claims to complementary protection in the way required by the Act, must be considered in light of what the Tribunal said in para.41 of its reasons, which is one of three paragraphs appearing under the heading “Complementary protection”. Significantly, in the first sentence of that paragraph, the Tribunal said:

   As noted, I am not satisfied as to the credibility of the Applicant’s claims that he would suffer harm of any kind on return to Sri Lanka for the reasons he has claimed.

1. The Tribunal then went on to elaborate on that statement and provided a sufficient basis for it.  I have found in connection with the first ground of the application that I have no reason to doubt that the Tribunal understood the tests it had to apply and that conclusion applies just as well to this ground of the application, as do my comments in relation to the first ground of the application, that the matter raised by the applicant is really no more than an invitation to the Court to substitute its view of the merits of his visa application for that of the Tribunal.

Ground 3

1. In the third ground of the application the applicant stated that he had further information which he could provide to the Court.  Again, what the applicant sought by this ground was a reconsideration of the merits of his visa application by way of the Court considering evidence which may or may not have been before the Tribunal.  For the reasons given in relation to the first and second grounds of the application, that allegation does not disclose a basis upon which the Tribunal’s decision ought to be set aside.

Ground 4

1. The fourth ground raised by the applicant, found in his affidavit in support, alleged a breach of s.424A of the Act. The Minister’s written submissions addressed not only s.424A but also s.425 of the Act but, given the way the allegation was worded, I am satisfied that the allegation was restricted to the former and did not raise the latter section. Section 424A relevantly provides:

   424A         Information and invitation given in writing by Tribunal

   (1)    Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)     invite the applicant to comment on or respond to it.

   …

   (3)    This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)     that is non‑disclosable information.

2. The Department of Foreign Affairs and Trade (“DFAT”) report to which the applicant referred in his affidavit was the one mentioned in para.24 of the Tribunal’s reasons, which the Tribunal cited in the context of information it had in its possession concerning the treatment of returnees to Sri Lanka. The applicant did not suggest that the DFAT report was specifically about him or another person, rather than about a class of persons of which he or another person was a member. I infer that the DFAT report was general information not specifically about the applicant or another particular person. In those circumstances, the information it contained fell within the s.424A(3) exceptions to the operation of s.424A(1), with the consequence that the information in question was not required to be supplied to the applicant and so no breach of s.424A has been made out.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 29 October 2014