SZTFR v Minister for Immigration
[2014] FCCA 1897
•26 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTFR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1897 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider the applicant’s complimentary protection claims and made a finding which was illogical, irrational and unreasonable. |
| Legislation: Migration Act 1958, ss.36, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 |
| Applicant: | SZTFR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2048 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 19 August 2014 |
| Date of Last Submission: | 19 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Counsel for the First Respondent: | Mr J. Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2048 of 2013
| SZTFR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 17 May 2012. On 27 August 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka. On 26 November 2012 the applicant’s 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.
In these judicial review proceedings the Court’s 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.
For the reasons which follow, the application will be dismissed.
Background facts
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa. As summarised by the Tribunal, the applicant relevantly made the following claims.
In a statement attached to his protection visa application the applicant alleged:
a)his father was a successful businessman and so various Tamil paramilitary groups (EPDP, Kuna or Pillayan) had demanded that he send his sons to join them or pay them money. The groups had engaged in the kidnap, torture and killing of Tamils and supported the Sri Lankan government;
b)because his father did not want his sons to join the paramilitary groups, he paid them 200,000 rupees on five occasions – once for his eldest son in 2004, once for his second son in 2009, before sending them separately to Qatar; and twice for the applicant, in June 2011 and March 2012, before sending him to Australia in May 2012;
c)should he return to Sri Lanka he would be forced to join one of the paramilitary groups because his father could not afford to pay for him again as his business was “in a downturn stage”;
d)he feared that the Sri Lankan authorities, including the Central Investigations Department (CID), would detain, torture, and kill him because he had left the country illegally and because he was a young Tamil whom they suspected of being an LTTE member;
e)he did not believe that the authorities would protect him because the CID was part of the government. The government also supported the paramilitary groups and used them against Tamils; and
f)he would be unable to relocate or live safely anywhere in Sri Lanka because the CID and paramilitary groups were tools of the government.
In a submission dated 15 February 2013, the applicant’s migration agent made the following additional claims on behalf of the applicant:
a)in 2004 his father paid two different LTTE members. He did not know which paramilitary group his father had paid in subsequent years but thought it had been either the EPDP, Karuna or Pillayan groups; and
b)his father and younger brother were no longer sleeping at home but staying with different friends out of fear. His father could not leave Batticaloa as he needed to support his family.
At the Tribunal hearing on 21 February 2013, the applicant gave the following additional evidence:
a)he had only seen the paramilitary who came to make demands on his father on one occasion when seven or eight of them armed with guns came for his second brother one night in 2009, after the civil war had ended. He had not seen the people who came for him but his father had told him that they were not local and thought that they were from the Karuna or Pillayan groups;
b)his father told him that on one occasion in 2012, after he had left Sri Lanka, members of the paramilitary had come to the house but his father did not open the door. They had not come again because his father and the applicant’s eighteen year-old brother stayed overnight with friends and only his mother and younger sister slept at home;
c)his father employed four people in his business, which manufactured and supplied concrete blocks and other construction materials, and carried out other seasonal business including boat hire;
d)he feared, should he return to Sri Lanka, that he would be unable to find employment because he had departed the country illegally and would be seen as someone who had committed an offence. He later said that it would have been possible for him to run his father’s business if he had not been forced to leave out of fear that he would be forced to work for paramilitary groups;
e)he variously claimed that the paramilitary groups approached his father because he had money and sons and because he had had nothing to do with government and was not involved in politics. Other businesspeople had not been targeted because they were with the government; and
f)he confirmed that both of his brothers left Sri Lanka by air on their own passports and that his second brother returned for a visit in 2012, passing through the airport without difficulty, although he had to hide from paramilitary groups during his stay for fear that they would forcibly recruit him.
The Tribunal’s decision and reasons
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) (“complementary protection”) of the Act. The Tribunal’s decision was based on the following findings and reasons:
a)while the Tribunal accepted that the applicant was a Tamil from the Batticaloa district in Sri Lanka, it was not satisfied that significant aspects of his claims about his circumstances prior to his departure were true. In particular, while the Tribunal was prepared to accept, based on country information, that the applicant’s father may have paid the LTTE in 2004 to avoid his eldest son being recruited, and may have had to have paid taxes to the LTTE and later to one or both of the TMVP factions, it was not satisfied that the applicant had been truthful about the paramilitary coming to recruit him and his second brother. In this connection the Tribunal:
i)found the applicant’s evidence regarding the approaches by paramilitary groups to be vague and unsupported by evidence. It considered that the similarities of all five approaches overlooked significant political developments and power shifts in the Eastern province over the eight year period in question. It also noted that the applicant had been unable to identify the group from which the men came or to say whether or not they might simply have been criminals;
ii)referred to the applicant’s inconsistent evidence as to who had made demands on his father and the timing of those demands;
iii)was prepared to accept, on the basis of country information, that a Tamil paramilitary group or a criminal gang might have approached the applicant’s father for money, however, it was not satisfied that that was either as a trade-off or as an alternative to his or his second brother’s forced recruitment into a paramilitary group;
iv)found it incongruous that, if the paramilitary groups had wanted to extract ransom money from the applicant’s father, they would not have targeted vulnerable members of the applicant’s family, such as his younger brother or sister. It also found it implausible, given the applicant’s evidence that the authorities were complicit with the paramilitary groups, that those groups only made threats at night and that his father had been able to operate his business during the day without issue; and
v)given its findings, did not accept that the applicant would be forced to join one of the paramilitary groups because his father could not afford to pay for him and considered the possibility that he would be at risk of harm from armed groups seeking to use him in order to extort money from his father to be speculative;
b)the Tribunal considered that the applicant’s evidence regarding his and his family’s alleged circumstances in Sri Lanka did not support his claim that he faced future harm there in connection with his Tamil ethnicity or in connection with being a Tamil from the east of Sri Lanka. In this regard, the Tribunal referred to country information that indicated that being a Tamil from an area previously controlled by the LTTE did not, of itself, result in any need for protection under the Convention. It also noted the applicant’s own evidence that no one in his family had been involved in politics, had had a high risk profile or had been harmed in connection with their Tamil ethnicity;
c)it was not satisfied that being of Tamil ethnicity or being a young Tamil male from a former LTTE stronghold, singularly or cumulatively, gave the applicant any actual or imputed political opinion linked to the LTTE or opposed to the Sri Lankan authorities or an adverse profile giving rise to a real chance of serious harm in Sri Lanka. In this connection, the Tribunal considered speculative and baseless the applicant’s claim that he would be imputed with such political opinions in the future given that, based on the applicant’s evidence, neither he nor his father or anyone else in his family had ever had any connection to the LTTE or other anti-government organisation in Sri Lanka (beyond the possibility that his father had paid off the LTTE), two of his brothers had departed Sri Lanka without issue and one had returned without issue;
d)while the Tribunal accepted that the applicant’s father was a business owner and that country information supported the proposition that, as a wealthy businessman, the applicant’s father might have faced extortion attempts by Tamil paramilitary or criminal groups in 2011 and 2012 and that these may have taken place with the complicity of the authorities, it did not accept that these factors were linked to a threat of forced recruitment of the applicant. It considered that were the applicant to return to Sri Lanka and return to work in his family’s business, he might have to pay money or taxes to paramilitary groups or criminals in the area but was of the view that that would not amount to serious or significant harm;
e)the Tribunal was not satisfied that there was a real chance that the applicant would face persecution or suffer serious harm in Sri Lanka because of his unsuccessful application for asylum. In this connection the Tribunal:
i)noted the absence of systematic monitoring by the United Nations Human Rights Commission of involuntary returnees to Sri Lanka but considered that fact to be an unreliable basis to conclude that there existed a real chance of serious harm for a particular reason; and
ii)accepted that the applicant would, as a returnee to Sri Lanka, go through a process of screening and questioning which would bring him into contact with the Sri Lankan authorities. However, it was not satisfied that being a returned failed asylum seeker would impute him with a political opinion linked to the LTTE or opposed to Sri Lankan authorities or give rise to differential treatment amounting to serious or significant harm, either at the airport in Sri Lanka or on his return to his home;
f)while it accepted that the applicant had departed Sri Lanka illegally, the Tribunal was not satisfied that Sri Lanka’s laws regarding unlawful departure were applied or enforced in a discriminatory way for a Convention reason or that the treatment faced by Sri Lankan returnees who had departed that country unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when later dealt with by the courts, amounted to persecution or significant harm, even when assessed cumulatively against what it accepted were the applicant’s personal profile and circumstances in Sri Lanka.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.(not pressed).
2.The Tribunal committed jurisdictional error in it assessment of whether the applicant was in need to complementary protection as the Tribunal has failed to consider the complimentary protection of the Applicant and / or in the alternative the Tribunal has conflated the complementary protection assessment and thereby committed jurisdictional error.
Particulars
The Tribunal accepted that there had been instances of extortion from the father. The Tribunal refers to standard material at (RRT Decision pp 17 -18 at [83]-[86]) but fails to specify or give reasons how it reached decision (at RRT decision p15 at [69]).
3.The Tribunal committed jurisdictional error in its assessment of whether the applicant’s application and the decision is affected by illogicality and / or irrationality or affected by Wednesbury unreasonableness.
Particulars
The Tribunal accepted that there had been instances of extortion from the father. The Tribunal erred in its assessment of the real chance of persecution the Applicant’s claim of possibility of being harmed (RRT decision p9 at [42]); the Tribunal erred and in assessment of “well-founded fear” when it rejected the claim as “speculative” even serious claims such as possible murder of the Applicant (such assessment is irrational to the extent the Tribunal such incident to have occurred before the Tribunal could make such an assessment).
(errors in original)
Ground 2
The essence of the second allegation in the application was, the applicant agreed at the hearing of this application, that the Tribunal did not consider complementary protection aspects of his Convention–related claims. Although a number of matters were raised in the particulars of this ground and in the applicant’s written submissions, the allegation can be dealt with on the basis that the applicant did not claim to the Tribunal that the factual circumstances which were the basis of his claim to be entitled to protection under the Convention also engaged Australia’s s.36(2)(aa) complementary protection obligations. That is to say, the applicant now complains that the Tribunal did not do something he did not ask it to do.
The applicant’s claims were articulated in his adviser’s written submissions to the Tribunal dated 15 February 2013. Those submissions were divided into seven numbered sections. Section 4, entitled “Well Founded Fear of Harm”, dealt with the applicant’s Convention-related claims and commenced with the words:
In [the applicant’s] case, we believe there exists a number of factors when considered both individually and cumulatively support a well-founded fear of convention related harm.
The submissions went on to set out the risk factors which the applicant’s advisers said gave rise to a well-founded fear of persecution for a Convention reason:
1.His Tamil ethnicity, particularly as a young Tamil male;
2.His origins as being from the Eastern province that would also be confirmed through his identity documents;
3.His father is or was a wealthy and successful businessman and his family have become known to be wealthy;
4.His family have been victims in the past of acts of extortion and threats of forcibly recruitment by armed paramilitary groups operating in the area, including pro-government paramilitary groups who now work alongside or have been outsourced the responsibility for controlling areas like Batticaloa;
5.He departed Sri Lanka illegally.
6.He has applied in Australia for asylum.
After setting out that list, the written submissions proceeded to discuss in detail matters relevant to those asserted risk factors.
Section 6 of the written submissions was headed “Complementary Protection Issues” and commenced as follows:
Whilst it is our submission that [the applicant] is owed protection under the Refugees Convention, if you are minded to conclude that the applicant is not a refugee, available information supports a conclusion that he falls within the complementary protection provisions that came into force on 24 March 2012.
The claim which the applicant’s advisers then went on to propound as engaging Australia’s complementary protection obligations concerned the risk of significant harm which the applicant was said to face because of his “illegal departure as an asylum seeker”. The advisers said:
[The applicant] would at the very least face a level of harm that would be significant, if not considered “serious”, on his return as he has left the country illegally and particularly as he left illegally to apply for asylum in Australia.
They then detailed the complementary protection claim.
The presentation of the applicant’s Convention-related claims in section 4 of the submissions and the presentation of his complementary protection claims in section 6 of the submissions reflected the reality that these were different and distinct claims. It is not surprising therefore that the submissions did not suggest that the facts referred to in section 4 were matters which engaged Australia’s complementary protection obligations or that the facts referred to in section 6 were matters which engaged Australia’s obligations under the Convention. The lack of interrelationship between the claims is also demonstrated in a practical way by the fact that the applicant’s potential status as a failed asylum seeker was the subject of separate arguments in sections 4 and 6 of the written submissions.
The Tribunal’s decision followed the same format as the written submissions of 15 February 2013, that is to say, it considered the applicant’s claims as they were made to it. The Tribunal did not consider whether the facts underlying the applicant’s Convention–related claims might have engaged Australia’s complementary protection obligations because the applicant never alleged or submitted that they did.
The Tribunal does not need to consider a claim not made to it although the fact that an available claim is not clearly articulated does not relieve the Tribunal of its obligation to consider that claim if it nevertheless arises tolerably clearly from the materials before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. However, unless there are compelling reasons to conclude otherwise, where an applicant is professionally represented it must be assumed that the claims which he wished to make before the Tribunal were the ones expressly articulated by him and his advisers and that any other grounds arguably available to him were not pressed: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57].
In this case the applicant was represented before the delegate and the Tribunal by the same professional advisers. Those advisers provided the Tribunal with the detailed written submissions of 15 February 2013 and the Tribunal was entitled to proceed on the basis that the applicant’s claims were the ones which were articulated by him and his advisers and that any other arguable grounds were not pressed. None of the complementary protection claims which the applicant now says the Tribunal failed to consider had been articulated to it by him or by his advisers. Consequently, the Tribunal did not err by not considering them.
Ground 3
The third ground of the application concerned para.42 of the Tribunal’s decision record which said:
I have had regard to the adviser’s submission that the applicant will be at risk of being harmed by armed groups seeking to use him in order to extort money from his wealthy father, which could include facing forcible recruitment, abduction and the possibility of being killed. However, I consider this speculative and without basis in the applicant’s experience in Sri Lanka before he left that country. At hearing the applicant suggested that were he not faced with the risk of harm in Sri Lanka, he would return to his hometown and work again in his family’s business. Should this happen, it is conceivable that the applicant might, like his father and other Tamil businessmen, have to pay money or taxes to paramilitary groups or criminals in his area. However, this does not amount to serious harm for a Convention reason or significant harm.
The applicant alleged that the Tribunal’s conclusion that his claims to face a risk of harm at the hands of the paramilitary groups were speculative was illogical, irrational and unreasonable. He submitted that this was so because the evidence showed that his family had a profile which made it vulnerable and the Tribunal had assumed that the payment of a bribe would solve any problems he might face notwithstanding there was no evidence that he could afford to pay such a bribe.
Turning first to the second element of that submission, which concerned the applicant’s capacity to pay money or taxes, properly understood the Tribunal’s conclusion on that issue was not part of its finding, in the first and second sentences of para.42, that the relevant claims were speculative in nature. The third and fourth sentences of para.42 dealt with other matters and consequently do not provide a basis to find error in the Tribunal’s conclusion that the applicant was merely speculating when he claimed to be at risk from paramilitary groups. Moreover, the conclusion expressed in the fourth sentence was presumably based on the available inference that if an informal tax or similar had previously been levied on the business and paid, another could be paid in the future.
In any event, the Tribunal’s conclusion that the applicant was merely speculating when he claimed to be at risk from paramilitary groups was not irrational, illogical or unreasonable in the sense explained in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 and SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1. The Tribunal was simply expressing a finding which was open to it on the evidence, namely that because certain events had not happened in the past the likelihood that they would occur in the future could only be guessed at. It was not a conclusion which no rational or logical decision-maker could have made.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
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: 26 August 2014
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