SZTFS v Minister for Immigration & Anor
[2015] FCCA 100
•12 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTFS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 100 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming fear of harm in Sri Lanka on various bases, including as a returnee – applicant’s fears found not to be well-founded – whether the Tribunal decision was vitiated by a want of procedural fairness, a failure to enquire, unreasonableness or a constructive failure to deal with the returnee claim – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.91R |
| Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21 WZAPN v Minister for Immigration [2014] FCA 947 |
| Applicant: | SZTFS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2051 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 December 2014 |
| Date of Last Submission: | 15 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 12 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Respondents: | Mr S Speirs of Clayton Utz |
ORDERS
The application as further amended on 15 December 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2051 of 2013
| SZTFS |
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 1 August 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is a Tamil male from Sri Lanka and had made claims of persecution on various bases. The following statement of background facts relating to the applicant’s claims for protection and Tribunal’s decision on them is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka who arrived on Christmas Island on 17 February 2012. He was interviewed about his circumstances twice in March 2012. On 30 May 2012, the applicant applied for a protection visa. That application was refused by the delegate on 23 August 2012.
On 14 September 2012, the applicant applied to the Tribunal for review of the delegate's decision. On 11 December 2012, the applicant attended a hearing before the Tribunal. On 1 August 2013, the Tribunal affirmed the delegate's decision to refuse the applicant a protection visa.
Applicant's protection claims
In his protection visa application, the applicant claimed that:[1]
a)he was employed as a security guard at the University in Batticaloa. On 11 November 2011, people he could not identify broke windows with rocks which he reported to the police. The matter was then handled by the Criminal Investigation Division (CID);
b)he was threatened the next day by a group of students because he had reported the incident. One student said that his father was a member of Parliament and had influence;
c)on 15 November 2012, he was dragged into a white van and warned that he should not report anything further about the incident of 11 November 2011 or he would be killed;
d)he was interrogated and threatened by the CID who blamed him for the incident because he did not know/would not tell the CID who threw the rocks;
e)as a result of the above events he became frightened and took time off work. The CID came to his house to question him and accused him of hiding to avoid them and threatened to charge him;
f)he was under pressure from the company which employed him, from the CID and from those who dragged him into the van;
g)he moved between his own house and that of his aunt to avoid harm;
h)his mother organised his trip out of Sri Lanka.
[1] Court Book (CB) 123, [12].
In summary, the applicant claims to fear harm in Sri Lanka from the authorities, the CID and those who were involved in the 11 November 2011 incident, including Karuna group members.[2]
[2] The applicant claims to suspect that his assailants were from the Karuna group because he recognised the driver of the white van: CB 123, [13].
In addition, the applicant claims to:
a)fear that he will be arrested at the airport because he left his country illegally and without a passport in 2011 and also because he will be imputed as a member or supporter of the Liberation Tigers of Tamil Eelam (LTTE) because he is a young Tamil male from the Batticaloa area which is an area previously controlled by the LTTE. The applicant also claimed that he has a scar on his leg that could be seen to be a war scar;[3] and
b)from 2000, he has feared harm from the Sri Lankan Army (SLA) and LTTE who took away people/children and were searching for him.[4]
[3] CB, 125, [21].
[4] CB 124-125, [20].
Tribunal's findings and reasons
The Tribunal made numerous findings concerning the applicant's evidence. The findings material to these proceedings were:
a)the Tribunal accepted that country information supported “in a general way” some of the claims that the applicant made about fears of returning to his country. In particular, those having or suspected of having LTTE ties continue to be at risk of harassment and sometimes ill-treatment from authorities including the SLA;[5]
b)the Tribunal accepted that Tamil returnees (including asylum seekers) to Sri Lanka and those who have left illegally are questioned or screened on their return to Sri Lanka. It also accepted that those considered to be supporters of, or affiliated with, the LTTE are at risk of harm;[6]
c)not without some doubt, the Tribunal accepted that there was an incident at the University on 11 November 2011 when property was damaged and which the applicant reported to police. However, it noted that the applicant stated that despite the incident he continued to work at the university (in the same role) up until one or two weeks prior to his travel to Australia. The applicant also remained living around his home area. The Tribunal found that this was not consistent with the applicant's claim that he has or will suffer serious or significant harm from the police, CID and others;[7]
d)the Tribunal accepted that the applicant, being a person who left the country illegally, will be dealt with under the relevant laws of Sri Lanka, being laws of general application. In doing so, it accepted that as a Tamil asylum seeker who left his country illegally and who is returning from a Western country, the applicant will be questioned. However, it did not accept that the applicant would be targeted for harm amounting to serious harm on return to Sri Lanka or that those laws would not be applied to him with discrimination;[8]
e)the Tribunal did not accept that the applicant has been or will be identified or perceived to be an LTTE member or supporter, either in Sri Lanka or in Australia, because he:[9]
i)is from the Batticaloa area;
ii)has a scar; and/or
iii)left his country illegally and has claimed asylum in Australia.
[5] CB 127, [28].
[6] CB 128, [31].
[7] CB 129, [37]-[38].
[8] CB 130, [41].
[9] CB 130, [41].
The judicial review application
These proceedings began with a show cause application filed on 2 September 2013.
An amended application was filed on 12 December 2013. At the trial on 3 December 2014 I gave the applicant leave to file a further amended application and post trial submissions on the issue of whether the Tribunal committed jurisdictional error by failing to deal with a clearly articulated claim by the applicant that he feared harm in the form of detention in Sri Lanka as a returnee who had departed the country illegally.
The applicant now relies upon a further amended application filed after trial by leave. There are five grounds in the application:
Ground 1
The Tribunal committed jurisdictional error when it denied procedural fairness/rejected claim relating to his scar without evidence.
Particulars
The Applicant had claimed that he would be targeted by the authorities as he had scar (CB 125 [31]) that would be perceived as war scar thereby bringing suspicion that he was involved with the war. The Tribunal rejected the claim despite there being no evidentiary support for the Tribunal’s findings (CB 130 at [41]).
There was no such evidence in the country information relied upon by the Tribunal.
Ground 2
The Tribunal properly failed to enquire into the November 2011 incident where it had duty to make enquiries and thereby fell into error.
Particulars
The Applicant provided a letter (CB 72 – CB 73) from the member of Parliament in support of the claim. The Tribunal rejected the letter because of “concerns” about the “applicant’s credibility” (CB 130 at [40]). The Member of Parliaments office is public office and a range of numbers is stated on the letter and the writer is easily contactable and the Tribunal was under [an] obligation to make the inquiries.
Ground 3
The Tribunal committed jurisdictional error when it failed to deal with clearly articulated attributes of social ground and thereby failed to deal with integer/claim and fell into error.
Particulars
The Applicant provided Statutory Declaration (CB 74 – CB 77) and stated at (CB 76 (at [18])) that he held fear as “…Tamil originating from a previously LTTE controlled area …” in support of the claim. The Tribunal has considered social group “… young Tamil male, a Tamil returnee from overseas with a scar, an asylum seeker who left Sri Lanka illegally and claimed asylum in Australia …” (CB 131 at [42]) and has clearly not considered the Applicant’s claim of being “from a previously LTTE controlled area” (Batticaloa) in so far as it considered the social group aspect of the claim.
Ground 4
The Tribunal has been irrational/illogical and procedurally unfair and committed jurisdictional error when it failed to deal with all the claims and/integers of the claims which were clearly articulated and/or arose from the material before the Tribunal.
Particulars
The Tribunal accepted the claims that an incident occurred at the University in November 2011 where University’s property was damaged (CB 129 at [37]) where the Applicant was employed as a security guard.
The Applicant claimed that threat was made to keep him quiet about the incident and that the harm may follow if he were to report the incident “not to report anything to anyone” as an alleged perpetrator was son of a Member of Parliament.
If property damage occurred on the Applicant’s watch (as accepted by the Tribunal) in the presence of the Applicant; the Tribunal ignored the perspective of the alleged perpetrators (to frighten the Applicant using any influence) not to report anything to anyone and that it was logical to frighten the Applicant (the Tribunal illogically focusing on the Police/CID: CB 126.
Ground 4A
The Tribunal has been procedurally unfair and committed jurisdictional error when it failed to deal with all the claims and/integers of the claims which were clearly articulated and / or arose from the material before the Tribunal [arrest and / or detention] and addressed different question to that claimed by the Applicant namely “harassment”.
Particulars
(i) The Applicant claimed that he would be arrested and detained (CB 77 at [17]-[20]):
(a) being Tamil from previously LTTE controlled area;
(b) having left Sri Lanka illegally;
(c) and / or arrest detention by CID.
(ii) the Tribunal accepted the claims that persons having left illegally would upon return would be dealt for illegal departure and “encounter harassment” (CB 130 at [41]) and did not deal with the claim of arrest and / or detention for illegal departure;
(iii) the Tribunal further committed jurisdictional error when it failed to address whether any arrest was reasonable and proportionate.
Ground 3 was not pressed. The fifth ground (Ground 4A) was added by leave following oral argument at the trial.
I have before me as evidence the court book filed on 9 October 2013.
The applicant and the Minister both made oral and written submissions. The applicant made post trial submissions on the additional issue by leave. The Minister elected not to respond to those submissions.
Consideration
I agree with and adopt the Minister’s submissions concerning Grounds 1, 2 and 4 in the further amended application.[10]
Ground 1 – was there a denial of procedural fairness or a want of evidence in relation to the Tribunal’s rejection of the applicant’s claim based on him having a visible scar?
[10] as I have noted above, Ground 3 was not pressed.
The applicant's first ground complains that there was no evidence to support the Tribunal's findings relating to the applicant's scar.
The Tribunal's findings regarding the applicant's scar were cast in the following terms: [11]
The Tribunal does not accept however that this applicant will be targeted for harm amounting to serious harm on return to Sri Lanka or that laws of a general application will be applied to him with discrimination, including because he is a Tamil male returnee, with a scar…
and
On the evidence before it the Tribunal does not accept that this applicant has been or will be identified or perceived to be an LTTE member or supporter, either in Sri Lanka or in Australia, including, because… he has a scar…"
[11] CB 130, [41].
The Minister submits that this ground should not be accepted by the Court. The two findings extracted above, are in substance, negative findings, ie, the Tribunal did not accept the applicant's claims that he would be targeted because of his scar. There is considerable authority supporting the proposition that “the no evidence ground should not be available where the finding challenged is in substance a negative one”.[12] I agree.
[12] see Sunchen Pty Ltd v Commissioner of Taxation [2010] FCA 21 at [45]. At [42]-[45] Perram J sets out a series of authorities in support of that proposition, all of which are migration matters.
Furthermore, it is critical to recall the operations and functions of the Tribunal. There is no requirement that there be evidence rebutting the claims of an application before a Tribunal can hold that a particular assertion is not made out.[13] Nor is the Tribunal required to accept uncritically the claims of an applicant.[14]
[13] see, SZSZM v Minister for Immigration & Anor [2014] FCCA 741 at [90].
[14] see SZQWV v Minister for Immigration [2012] FCA 817 at [21]-[23] per Gilmour J.
In oral submissions at the trial, counsel for the applicant submitted that it was procedurally unfair for the Tribunal to reject the applicant’s claim based upon his visible scar without giving him the opportunity to respond to the Tribunal’s doubt and without understanding the significance of the issue. Assuming, for the purposes of the argument, that the Tribunal came under an obligation to put its doubt to the applicant about the scar claim, there is no evidence that it failed to do so. There is no transcript available of what occurred at the Tribunal hearing. At [21] of its reasons[15] the Tribunal records that the scar claim was the subject of submissions at the Tribunal hearing. At [22][16] the Tribunal records, albeit very cryptically, that it “discussed with the applicant the concerns it had with his claims”. On the available material, it is not open to me to conclude that this did not include the Tribunal’s doubts about the scar claim.
Ground 2 – was the Tribunal under a duty to enquire into the veracity of the letter from the member of Parliament?
[15] CB 125.
[16] CB 126.
The applicant asserts that the Tribunal failed to acquit its “duty to enquire”.
The Minister submits that this ground is misconceived for the following reasons:
a)the letter did not serve its stated purpose: it is apparent that the Tribunal rejected the applicant's letter because the applicant gave oral evidence which undermined its stated utility. The applicant requested that the Tribunal refer to this letter as independent corroboration of his story. However, his oral evidence to the Tribunal indicated that the corroborative story was not in fact independent. The Tribunal stated in its reasons: [17]
[The applicant] told the Tribunal that the writer of the letter did not know that he (the applicant) was involved in the incident at the university and that his parents had to tell the writer about the details about him (the applicant) that are in the letter.
b)the ground is factually misconceived:the particulars to Ground 2 state that the letter was rejected solely on the basis of the applicant's credibility. However, the applicant's oral evidence, extracted above, demonstrates that a further and substantive reason the Tribunal did not propose to rely upon the letter was that it was unable to serve as an independent corroboration of the applicant's story;
c)there was no duty to disprove the applicant's evidence: commencing from the above stated position, it is difficult to understand what “duty to enquire” the Tribunal could possibly have. The only potential “enquiry” which could be undertaken by the Tribunal was to disprove the oral evidence provided freely by the applicant at the Tribunal. It is submitted that the Tribunal was not legally obliged to undertake any such inquiry.
[17] CB 130, [40].
I accept those submissions. It follows from the Tribunal’s decision at [40][18] that although the Tribunal doubted the authenticity of the letter from the member of Parliament, having regard to country information about document fraud in Sri Lanka, the Tribunal should be taken to have reasoned that even if the document was genuine, it provided no independent corroboration of the applicant’s claims. While the letter corroborated the claim of an incident at the University, the Tribunal had accepted that. The letter did not independently corroborate the applicant’s asserted involvement in that incident because, as the applicant had admitted at the Tribunal hearing, the member of Parliament derived his information about the applicant’s involvement from his parents.
[18] CB 130.
In the circumstances, there was no obvious enquiry that could be readily made of the member of Parliament about an issue which could be determinative of the claim.
Ground 4 – was the Tribunal decision irrational or illogical or procedurally unfair in failing to deal with all the claims and integers which had been readily articulated or arose from material before the Tribunal?
As this ground was formally articulated and supported by submissions, there was confusion about what error was being asserted.
As detailed above, the Tribunal did not accept that the applicant was threatened with harm by those who caused the damage at the University due to adverse credibility findings arising from inconsistencies in his evidence. The Tribunal was not obliged to accept the applicant's claims, simply because of some assumed motive “from the perspective” of the alleged perpetrators.
The Minister submits that this is clearly a case in which “it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”.[19] No issue of irrationality or illogicality can arise in these circumstances. I agree.
[19] SZMDS at [133].
It appears that what the applicant is, in reality, seeking under this ground is to use this Court as a forum for impermissible merits review.
Ground 4A – arrest and detention
At the trial of this matter on 3 December 2014, counsel for the applicant raised in argument, in addition to the grounds of review then advanced, the proposition that the Tribunal had fallen into error for the reasons identified by North J in WZAPN v Minister for Immigration[20] in particular at [28]-[35]. Because that issue had not been raised in the then amended application (and I was prepared to accept that it was arguable), I gave leave for the applicant to file and serve a further amended application (which was done on 15 December 2014) and further submissions.[21] I also gave the Minister the opportunity to make further submissions on that issue. I note that the additional ground does not, on its face, rely upon WZAPN although the decision is referred to in the applicant’s additional written submissions filed on 15 December 2014.
[20] [2014] FCA 947.
[21] cf SZTBW v Minister for Immigration [2014] FCA 1277 at [15] where Perry J refused leave in similar circumstances.
To the extent that the additional ground depends upon the decision in WZAPN, the present case should be distinguished. First, the factual situation is different to that in WZAPN. Contrary to the applicant’s submissions, the Tribunal did properly consider the applicant’s claimed fear of harm by reason of his illegal departure. That consideration appears at [41] of the Tribunal’s reasons:[22]
As referred to above, having regard to the country information consulted by the Tribunal, the Tribunal accepts that Sri Lankan nationals who have left their country illegally and who are returning to Sri Lanka from overseas countries, including Tamil asylum seekers from western countries, are questioned and sometimes investigated and some suffer harm and harassment on their return to Sri Lanka especially if they are perceived to be connected with or assisting the LTTE in either Sri Lanka or in an overseas country. The Tribunal accepts that the applicant, being a person who left the country illegally, will be dealt with under relevant laws of Sri Lanka which are laws of general application; it accepts that being a Tamil asylum seeker who left his country illegally and who is returning from a western country he will be questioned and encounter some harassment on return to Sri Lanka. The Tribunal does not accept however that this applicant will be targeted for harm amounting to serious harm on return to Sri Lanka or that laws of general application will be applied to him with discrimination, including because he is a Tamil male returnee, with a scar, from a western country/a Tamil make from Battiocaloa who is a failed asylum seeker who left the country illegally. The tribunal finds that this applicant is not of interest to the police/CID/Sri Lankan authorities in Sri Lanka for the reasons that he claims. On the evidence before it the Tribunal does not accept that this applicant has been or will be identified or perceived to be an LTTE member or supporter, either in Sri Lanka or in Australia, including because he is from the Battiocaloa area or because he has a scar or that he will be identified as otherwise of interest to Sri Lankan authorities because he left his country illegally and/or has claimed asylum in Australia. In the Tribunal’s view in the case of this applicant the Tribunal finds that there is not a real chance or real risk that he will be subjected to harm amounting to serious harm for the purposes of the Convention or significant harm for the purposes of the complementary protection criterion, if he is returned to Sri Lanka from Australia.
[22] CB 130.
It is plain that the above consideration by the Tribunal encompassed the harm the applicant claimed that he would suffer at the hands of the authorities upon his return. Further, unlike in WZAPN, the Tribunal made no finding that the applicant would be detained for any period of time.
Secondly, the Immigrants and Emigrants Act 1945 of Sri Lanka was found by the Tribunal to be a law of general application that did not apply and would not be applied in a discriminatory fashion. Thus,[23] even had the Tribunal considered that the applicant would be detained, this case is distinguishable from WZAPN because the laws relating to illegal departure in Sri Lanka were found by the Tribunal to be of "general application" based on the independent country information before the Tribunal.[24] Accordingly, because the law is not applied in a discriminatory way, any harm that the applicant might suffer as a result of its application is not “persecution for one or more [Convention] reasons”[25] and the applicant cannot satisfy the threshold requirement in s.91R(1)(c) of the Migration Act 1958 (Cth).[26]
[23] The Minister protectively submits that WZAPN was wrongly decided.
[24] [41].
[25] Section 91R(1)(a) of the Migration Act.
[26] This construction is supported by subsequent decisions of the Federal Court: see SZTBW at [20] and the cases there referred to.
Although the Tribunal accepted that “some” Tamil asylum seekers may suffer serious harm or harassment, particularly if they are imputed with some connection to the LTTE, the Tribunal found that “this” applicant would not be targeted for harm amounting to serious harm, and that the laws of general application would not be applied “to him” in a discriminatory way.
Conclusion
The applicant has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 12 February 2015
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