SZTFL v Minister for Immigration
[2014] FCCA 1620
•1 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTFL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1620 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka on various bases – applicant not believed in important respects and other fears found not to be well-founded – no jurisdictional error. |
| Legislation: |
Migration Act 1958 (Cth), ss.36, 46A, 91R, 424A, 425
| Minister for Immigration v SZQPA [2012] FCA 1025 SZQPA v Minister for Immigration & Anor [2012] FMCA 123 SZSGA v Minister for Immigration[2013] FCA 774 |
| Applicant: | SZTFL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2016 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Respondents: | Ms S Given Sparke Helmore |
ORDERS
The application as amended on 29 November 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2016 of 2013
| SZTFL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 31 July 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts relating to the applicant’s migration history, his claims to protection and the Tribunal decision on them is derived from the submissions of the parties.
The applicant is a national of Sri Lanka who arrived on Christmas Island on 5 June 2012 as an Irregular Maritime Arrival[1].
[1] Court Book (CB) 1 to 6
On 12 September 2012, the applicant was notified that the Minister had exercised his power under s.46A(2) of the Migration Act1958 (Cth) (Migration Act) to lift the bar and allow him to lodge an application for a protection visa[2], which the applicant did that same day[3]. The applicant included two statutory declarations, some supporting documents, photographs and an excerpt of his passport with the application[4].
[2] CB 23
[3] CB 24-71
[4] CB 72-92
On 20 September 2012 the applicant’s migration agent made a written submission to the Minister setting out, in further detail, the applicant’s claims[5]. The applicant claimed to fear harm in Sri Lanka for reasons of his Tamil ethnicity, membership of particular social groups comprising Tamils in Sri Lanka, young Tamil men in the east or north of Sri Lanka or “people suspected or accused of being members of, associated with or supporting the LTTE” and his real and imputed political opinion arising from his race and former residence in a Tamil area. He claimed to have worked as a fisherman in Mullaithivu and to have been harassed by other Muslim and Sinhalese fishermen. He claimed to have been repeatedly questioned and detained by the army and the police on suspicion of supporting the LTTE. He also claimed that if he returned to Sri Lanka he would face harm due to his illegal departure and/or status as a failed asylum seeker.
[5] CB 93-104
On 24 October 2012, a delegate of the Minister refused the grant of the protection visa[6].
[6] CB 105-125
On 29 November 2012 the applicant, by his migration agent, applied to the Tribunal for a review of the delegate’s decision and appointed an authorised recipient[7].
[7] CB 126-138
On 17 December 2012, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments[8]. The applicant attended a hearing of the Tribunal on 1 February 2013 at which he presented the Tribunal with his passport[9].
[8] CB 137
[9] CB 143 and CB 196 at [79]
On 22 February 2013, the applicant’s agent submitted a post-hearing submission to the Tribunal[10]. On 9 April 2013, the Tribunal invited the applicant (via the authorised recipient) to comment on information that it considered may be the reason or part of the reason for its decision[11]. The applicant responded on 19 April 2013[12].
[10] CB 147-166
[11] CB 167-177
[12] CB 179
On 31 July 2013, the Tribunal notified the applicant of its decision (made that day) to affirm the delegate’s decision to refuse the visa[13].
[13] CB 181-208
Tribunal decision
The Tribunal’s findings were extensive, and comprehensively addressed the applicant’s claims for protection.
On the basis of cumulative concerns with the applicant’s evidence, the Tribunal found he was not a witness of truth and his account of events on which his application was based were false[14]. Specifically, the Tribunal identified inconsistencies in the applicant’s evidence about being detained by the army in Udappu[15], about being taken to the police station in Udappu[16], discrepancies in his evidence about the period he spent in Mullaithivu from August 2011[17], inconsistencies about approaches made by the army to recruit him whilst he was in Mullaithivu[18] and inconsistencies about the army coming to the family home and taking photographs[19].
[14] CB 199 at [106]
[15] CB 196-197 at [81]-[86]
[16] CB 197-198 at [87]-[91]
[17] CB 198 at [92]-[95]
[18] CB 198 at [96]-[99]
[19] CB 199 at [100]-[102]
The Tribunal did not believe that the applicant had been detained by the army at any time in Sri Lanka or that he was held at a police station for three or four hours on any occasion. It did not accept that the army had ever assaulted the applicant’s father or approached the applicant and questioned him about joining them. Nor did it accept that the army had visited the applicant’s family home on any occasion[20].
[20] CB 199 at [107]
The Tribunal also rejected the applicant’s claims to have experienced difficulties working as a fisherman[21] or to have been asked by the LTTE to join them[22]. The Tribunal found there was no credible evidence that the Sri Lankan authorities or anyone else in Sri Lanka wanted to harm the applicant[23]. On the basis of independent country information, the Tribunal did not accept that the applicant faced a real chance of harm on the basis of his Tamil ethnicity alone[24].
[21] CB 200 at [108]
[22] CB 200 at [109]
[23] CB 200 at [110]
[24] CB 200 at [111]-[113]
While the Tribunal accepted that the applicant might be questioned by the authorities on his return, it was not satisfied that this would lead to him suffering serious or significant harm. Nor did it accept on the basis of the accepted independent country information that the applicant would otherwise face serious or significant harm because he was a failed asylum seeker. It also found that whilst the independent country information indicated that he might be remanded in custody for a few days and fined because of his illegal departure from Sri Lanka, Tamils were not targeted in a discriminatory manner. The Tribunal did not accept that being detained for a few days before being bailed constituted serious harm or that there was anything more than a remote chance that the applicant would face serious harm[25].
[25] CB 200-201 at [114]-[121]
The Tribunal also did not accept that the imposition of a fine or being held in remand would constitute significant harm for the purposes of the complementary protection criterion[26].
[26] CB 207 at [167]-[168]
Having considered the applicant’s claims, the Tribunal was not satisfied that he had a well-founded fear of persecution for any Convention reason[27] or that there was a real risk that he would face significant harm if he returned to Sri Lanka[28].
[27] CB 206 at [161]
[28] CB 207 at [169]
The present application
These proceedings began with a show cause application filed on 28 August 2013. The applicant now relies upon an amended application filed on 29 November 2013. There are six particularised grounds in that application:
1. The Tribunal committed jurisdictional error in its finding about the Applicant’s claims about having difficulties working as a fisherman in Mullatheivu to subsist in Sri Lanka (CB 204 at [141], [143]. It misapprehended the meaning of persecution under the Refugees Convention 1951 and s.91R(2)(f) of the Migration Act and thereby misdirected its inquiries and / or applied the wrong test, and / or made finding not supported by evidence. The Tribunal further erred in denying the applicant procedural fairness pursuant to s.424A and / or s.425 in failing to give the applicant opportunity to comment on these critical matters.
Particulars:
a. The Applicant claimed that he was restricted in Mullatheivu to fish in certain areas and had to go to smaller areas where permit or pass was required.
b. The Applicant and his father had to surrender fishing catch to the police.
c. The Applicant, as a Tamil fisherman, encountered harassment, threats and was beaten by the Muslim and Sinhalese fishermen. This evidence was corroborated where the Applicant and his father complained to the army. The evidence was made available and was not challenged by the Tribunal.
d. The Applicant’s boat was damaged.
e. The Applicant’s father states that it is difficult to make a living because of the harassment from Sinhalese and Muslim fishermen.
f. Failure on the part of [the] Tribunal to give weight on the issue of persecution which can involve significant economic hardship that threatens a person’s capacity to subsist.
g. The Applicant was deprived the basic right to work, denied human dignity in a key way, deprivation of certain socio-economic rights such as the ability to earn a living as a Tamil fisherman or the entitlement to food.
2. The Tribunal committed jurisdictional error when it failed to deal with the Applicant’s claim as to private property rights and the Applicant’s opinion / imputed opinion as to property rights in the Applicant’s claim (CB 187-188).
Particulars:
a. The Applicant claimed that the army occupied land they owned, the family were given land by a United Nations agency and they built a house and lived there. The Tribunal did not enquire further about this matter and the Tribunal did not challenge this statement.
b. The Tribunal did not invite the Applicant to comment or respond to the information that his property was occupied by the army.
c. Failure on the part of the Tribunal to consider a claim that clearly arose before it.
d. The Tribunal acknowledges that Tamils may suffer discrimination in Sri Lanka and that the Sinhalese population would perceive preferential treatment from the government or military. It further states that “The Tribunal acknowledges that Tamil grievances may remain unresolved”.
3. The Tribunal fell into jurisdictional error when its approach was to focus upon the likely outcome when the Applicant arrives at the airport as an illegally departed person/asylum seeker rather than process of interrogation that the Applicant would be subjected on his return to Sri Lanka. The Tribunal failed to address the risk of physical harm during the process of interrogation. The Tribunal had asked itself the wrong question and thereby fell into error.
Particulars:
a. The Applicant would be subjected and the risk that the Applicant might suffer serious harm amounting to persecution before being able to convince the authorities that he is not a sympathiser of the LTTE. The Applicant might well be able to persuade the authorities that he did not represent a risk, but the Tribunal need to consider what might happen prior to that point being reached.
b. Suspected of being LTTE [sympathisers] could potentially be subject of persecution by the authorities.
c. The Applicant is a young Tamil fisherman from Mullaithivu an area that were previously controlled by the LTTE, and the Sri Lankan government perceives that all Tamils originating from this area are supporters / [sympathisers] of the LTTE.
d. The Applicant has been harassed and detained in the past by authorities on several occasions.
e. The Tribunal had asked the wrong questions in directing its attention only to whether the Applicant in this case departed Sri Lanka illegally and not considering that he might be harmed by the authorities, EPDP and other issues surrounding whether as a Tamil fisherman from this particular area is at risk.
4. The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in the respect of the Applicant’s particular social group [Tamil Fisherman] falling to follow proper procedural steps/manner when dealing with social groups and has failed to deal with all the claims and to deal with the claims both individually and cumulatively in respect risk of harm from (i) the State agencies / instrumentalities; and (ii) Sinhalese and Moslems. The Tribunal further fell into error making findings in the absence of evidence the finding the Tribunal in fact made, no reasonable person would make and thereby irrational and/or illogical and thereby committed jurisdictional error.
Particulars:
a. The Tribunal failed to deal with the manner social group in manner stated in Dranichnikov/SZNVE & other cases.
b. The Tribunal accepts that the Applicant was a Tamil fisherman.
c. The failure to consider a claim that clearly arose on the materials before the Tribunal, that the Applicant was persecuted and harassed by the army, police and by [Muslims] and Sinhalese fishermen groups.
d. The Applicant claimed that he was restricted in Mullaithivu to fish in certain areas.
e. The Applicant and his father had to surrender fishing catch to the police.
f. The applicant’s boat was damaged.
g. The Sri Lankan government perceives that Tamil fishermen particularly from this area are normally suspected being LTTE [sympathisers].
h. Accordingly, this evidence was corroborative of, and of critical importance to the applicant’s claims.
5. The Tribunal failed to conduct the review pursuant to s.414 of the Act because it failed to consider a claim that clearly articulated claims and / claims clearly arising on the material before the Tribunal or arose on what was before it. Firstly, the possible significant harm the Applicant might be subjected to in future by the EPDP and secondly, the issue of if the LTTE re-form they could harm him. The Tribunal committed jurisdictional error by failing to have regard to all relevant materials in resulting of denial of procedural fairness in relation to its findings.
Particulars:
a. The Applicant gave evidence that he is afraid to return to Sri Lanka as he will be harmed by the army; the police and the EPDP who he said were part of the army.
b. The Tribunal failed to address the issue in respect of his fear to EPDP during the review process.
c. Furthermore, the Tribunal did not [challenge] or invite the Applicant to comment on or respond to these issues during the review process.
d. The Tribunal failed to give fair notice in writing of critical matters of concern to the Tribunal in relation to the risk that the EPDP might cause to the Applicant.
e. The Tribunal failed to ensure that the Applicant understands the significance of those matters to the decision under review.
6. The Tribunal committed jurisdictional error of law in its consideration in finding that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention 1951 or other Complementary protection grounds.
Particulars:
a. In making its decisions, the Tribunal did not give proper consideration in its findings;
i. The Applicant may well be investigated and even interrogated by the Sri Lankan authorities to determine whether he is a security threat.
ii. The authorities fear those abroad have been LTTE supporters and that they may suspect the claimant as a failed Tamil asylum seeker rather than his illegal departure issues from Sri Lanka.
iii. The Tribunal refused to accept the reasonable explanation offered by the Applicant in relation to certain inconsistency in this matter.
iv. Failure on the part of the Tribunal not to take into account the risk that the Applicant of being persecuted and a Convention ground may be established by either direct or circumstantial evidence.
v. The Tribunal reached the conclusion that the Applicant did not have a well-founded fear of persecution in Sri Lanka based on misconstruction of the definition of Refugee in the Refugees Convention and was contrary to law.
vi. The Tribunal reached the conclusion that the Applicant did not have a well-founded fear of persecution in Sri Lanka, firstly, without considering the fear that the Applicant had in relation to the EPDP [a paramilitary group closely associated with the government] and secondly, the Applicant is afraid that if the LTTE re-form they could harm him. This clearly demonstrates the irrationality and/or illogicality of [its] decision in light of the evidence available to it.
vii. The Tribunal’s approach of only taking into consideration country information that supports its findings and totally ignoring other independent country information which relates to Sri Lankan refugees and failed Tamil asylum seekers.
viii. Failing to consider whether the Applicant would be at real risk of substantial harm owing in enforcing private property rights;
ix. Erring in adopting the “real chance” test in relation to complementary protection (CB 185 at [20]).
Ground 2 was not pressed.
I have before me as evidence the court book filed on 1 October 2013. The parties both made written and oral submissions.
Consideration
At the commencement of the trial of this matter, I expressed some disquiet to counsel for the applicant about the breadth and detail of the attack upon the Tribunal decision. Although Ground 2 was not pressed, the Court was still left with a very wide ranging challenge to the Tribunal’s reasoning process which, as I explained to counsel for the applicant, may be counterproductive in that it can distract attention from more salient legal issues. Whatever else may be said about the Tribunal’s decision in this case, it is apparent from the Tribunal’s reasons that the Tribunal gave thoughtful consideration to the applicant’s claims, by reference to extensive country information.
Ground 1
This ground makes a variety of allegations in relation to its findings about the applicant’s ability to subsist as a fisherman. The Tribunal is alleged to have misapprehended s.91R(2)(1) of the Migration Act and to have failed to comply with its ss.424A and 425 obligations.
The Tribunal was prepared to accept that the applicant had worked as a fisherman in Sri Lanka[29], however it did not accept his claims to have experienced difficulties while doing so[30]. It also found there was no credible evidence that the applicant would be unable to subsist in Sri Lanka[31]. The Tribunal formed an adverse view of the credibility of the applicant and it explained by reference to a number of particulars why it had reached that conclusion. The matters to which the Tribunal referred were not minor or trivial and provided a rational basis upon which it was open for the Tribunal to find that the applicant’s evidence was not credible.
[29] CB 200 at [110]
[30] CB 200 at [108]
[31] CB 203 at [139]
There was no information going to the findings regarding being a fisherman that required the Tribunal to invite the applicant to comment pursuant to s.424A. As to the suggestion of a breach of s.425, I accept the Minister’s submission that what is really being urged upon the Court is to find the Tribunal ought to have acted in the way inconsistent with the High Court decision in SZBEL v Minister for Immigration[32]. In that decision the Court stated the following at [48]:
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
[32] (2006) 228 CLR 152
The applicant has failed to establish in this ground any jurisdictional error by the Tribunal.
Ground 3
By this ground, the applicant asserts that the Tribunal fell into error in dealing with the risk faced by the applicant as a returnee subject to questioning by the Sri Lankan authorities. The applicant asserts that the Tribunal fell into the same error identified by me in SZQPA v Minister for Immigration & Anor[33]. The reliance upon my earlier decision was misplaced given that there was an appeal to the Federal Court, albeit unsuccessful[34].
[33] [2012] FMCA 123 at [29]
[34] see Minister for Immigration v SZQPA [2012] FCA 1025
In any event, as is pointed out in the Minister’s submissions, this case is readily distinguishable from SZQPA on the basis that it turns on its own facts. The Tribunal specifically considered the risk of the applicant being tortured in the process of being questioned following a hypothetical return to Sri Lanka. Relevantly, the Tribunal said at [155] of its reasons[35]:
The Tribunal acknowledges the prevalence of torture in detention in Sri Lanka by law enforcement officers but finds that the risk of this happening to the applicant in the process of being questioned at the airport, being held briefly in remand, if that occurs, before being brought before a magistrate to be granted bail, and just because he is a Tamil who sought asylum in Australia after leaving Sri Lanka illegally, is remote.
[35] CB 205
In the complementary protection section of the Tribunal decision, the Tribunal noted that it had dealt with the applicant’s claims and for the same reasons it found the applicant’s fear of persecution was not well founded. It found that there is not a real risk he will suffer significant harm in Sri Lanka[36].
[36] CB 206 at [162]
Given the Tribunal’s factual findings that the applicant would not suffer serious harm, it was open to the Tribunal to proceed to dismiss the applicant’s claims under the complementary protection provisions using the language of the Migration Act[37].
[37] SZSGA v Minister for Immigration [2013] FCA 774 (SZSGA) at [56] and SZSHK v Minister for Immigration [2013] FCAFC 125 at [32]
Accordingly, Ground 3 fails.
Ground 4
The applicant submits that the Tribunal failed to address the social group that he asserted membership of in dealing with the possibility of relocation. I reject that contention.
The Tribunal properly set out the applicant’s various claims at [124][38] including his alleged membership of a particular social group being “people suspect or accused of being members of, associated with or supporting the LTTE”. Further the Tribunal found that the applicant would not experience difficulties as a fisherman[39] and that he would not have to modify his conduct on return[40].
[38] CB 202
[39] CB 204 at [143]
[40] CB 204 at [146]
This complaint is also contrary to existing case law. There is no obligation on the Tribunal to consider whether the particular social group of which an applicant claims to be a member was a “social group” for the purposes of Article 1A(2) of the Refugees Convention (and the Migration Act), in circumstances where the Tribunal found that the applicant did not hold a well-founded fear of persecution as contemplated by s.91R(1) of the Migration Act for any Convention reason.
Ground 5
The applicant asserts that the Tribunal failed to consider a claim made by him of fear of the Eelam Peoples Democratic Party (EPDP). The claim is said to somehow arise from [75] of the Tribunal’s reasons[41]. I am not persuaded that any claim by the applicant concerning the EPDP was made or that such a claim clearly arose from the available material. It may be that the asserted claim is said to arise from the Tribunal’s description of the applicant’s claims at [47][42]. The applicant appeared to believe that the EPDP was somehow part of the Sri Lankan Army.
[41] CB 196
[42] CB 188
In any event, my view, such a claim, if it existed at all, was subsumed in findings of greater generality by the Tribunal at [110][43].
[43] CB 200
I reject this ground.
Ground 6 – complementary protection
The applicant asserts that the Tribunal fell into jurisdictional error in assessing his claim to complementary protection by not making its assessment as required by the Migration Act. I accept that this claim is arguable. The applicant relies upon [164] of the Tribunal’s reasons where the Tribunal said[44]:
The Tribunal acknowledges the prevalence of human rights violations and violence in Sri Lanka and that the state and related agencies perpetrate those violations and violence but, in view of the country information mentioned earlier in this decision, the Tribunal considers that the risk of the applicant suffering abuses or violence because he is Tamil (or because of his age, gender, place of birth or origin, his illegal departure and his failed asylum attempt in Australia) is remote.
[44] CB 206
The applicant complains that in that paragraph the Tribunal fell into error by conflating the tests for refugee protection and complementary protection. That interpretation of the paragraph is open.
The solicitor for the Minister offered an alternative interpretation, namely that the Tribunal was simply referring back to its earlier factual findings for the purpose of dealing with the applicant’s complementary protection claim. The Minister also reiterates his submission, in relation to Ground 3, that, given the Tribunal’s factual findings that the applicant would not suffer serious harm, it was open to the Tribunal to proceed to dismiss the applicant’s claims under the complementary protection provisions using the language of the Migration Act[45].
[45] SZSGA v Minister for Immigration [2013] FCA 774 (SZSGA) at [56] and SZSHK v Minister for Immigration [2013] FCAFC 125 at [32]
There is a third possibility. That is that the Tribunal may have been attempting to engage with s.36(2B) of the Migration Act to determine whether there was anything about the applicant which set him apart from the population of Sri Lanka generally.
It would have been better if the Tribunal had engaged specifically with the criteria in s.36(2)(aa), as illuminated by s.36(2A) and (2B). However, I do not accept the applicant’s contention that the Tribunal conflated the test for refugee status protection and complementary protection. In [164] the Tribunal was not looking for a Convention nexus but was, on a fair reading, referring back to its earlier factual findings and relating those findings to the statutory criteria (including the exception provisions) in s.36.
The applicant has failed to establish any jurisdictional error in this ground.
Conclusion
The applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 1 August 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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