SZTFZ v Minister for Immigration
[2014] FCCA 1861
•17 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTFZ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1861 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – applicant disbelieved in critical respects – applicant’s fear of harm otherwise found to be not well-founded – Tribunal basing its decision on complementary protection on the same factual findings as those supporting its decision on refugee status – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 412 |
| Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Minister for Immigration v SZQRB (2013) 210 FCR 505 MZYYL v Minister for Immigration (2012) 207 FCR 211 MZZIA v Minister for Immigration & Anor [2014] FCCA 717 SZFSK v Minister for Immigration & Anor [2013] FCCA 7 SZRZN v Minister for Immigration &Anor [2013] FCCA 510 SZSGA v Minister for Immigration [2013] FCA 774 SZSHK v Minister for Immigration & Anor [2013] FCCA 2017 SZSHK v Minister for Immigration[2013] FCAFC 125 SZSRR v Minister for Immigration & Anor [2013] FCCA 1712 |
| Applicant: | SZTFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2087 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Aleksov |
| Solicitors for the Applicant: | Ravi James Lawyers |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application as amended on 21 May 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2087 of 2013
| SZTFZ |
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 6 August 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Sri Lanka and had made claims of a fear of harm based upon an imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE).
The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Sri Lanka, arrived in Australia by boat on 11 May 2012[1]. He applied for a Protection (Class XA) visa on 10 August 2012[2].
[1] Court Book (CB) 92
[2] CB 1-55
A delegate of the Minister refused the application for a visa on 3 October 2012[3].
[3] CB 91-103
The applicant applied for review of the delegate’s decision on 29 November 2012[4].
[4] CB 130-135. The Tribunal held that that the application for review was within the time allowed by s.412(1) as the initial notification of the decision of the delegate had not been effective – see CB 155-156 and CB 250 at [169]
The applicant and his representative attended a hearing before the Tribunal on 7 February 2013[5]. The advisor also provided two written submissions to the Tribunal following the hearing[6].
[5] CB 167
[6] CB 173-194 and 209-220
On 6 August 2013, the Tribunal published its decision affirming the decision of the delegate[7].
[7] CB 224-250
The applicant’s claims
The applicant claimed to fear harm on the basis of:
a)his Tamil ethnicity;
b)his political opinion (being opposed to the Sri Lankan government and its treatment of Tamils);
c)his imputed political opinion (namely, his imputed support of the LTTE; and
d)his membership of variously defined social groups including “Tamil men in the East or North of Sri Lanka” and Tamils returning to Sri Lanka as failed asylum seekers.
The details of the claims advanced by the applicant developed over the course of the visa application and merits review procedure. However, the claims can be summarised as follows:
a)the applicant was asked to join the LTTE while at high school. He did not join them, but was forced to train with the LTTE and assist them by providing information;
b)after he left school, the applicant worked as a tailor. On five occasions he was detained by the Sri Lankan army and questioned about his involvement with the LTTE;
c)in 2002 the applicant left Sri Lanka and lived in Saudi Arabia. He left in order to avoid the attention of the army but was forced to return when he was deported from Saudi Arabia;
d)in 2006, the applicant was detained at an army camp for three days;
e)in 2007, the applicant started his own shop. One of his employees was involved in the LTTE. The army detained the employee and accused the applicant of assisting the LTTE;
f)in 2008 he was approached by two men on a motorcycle. The men assaulted him and put a gun to his head. One shot was fired in the air by the assailants, who fled when onlookers approached the scene of the assault;
g)the applicant closed his shop in 2010 because of his fear of the army and intelligence. He resumed work as an employee tailor, however he was still threatened on the street by members of the army;
h)in April 2012 the applicant travelled to Colombo. He left to India on his own passport and then travelled to Christmas Island by boat.
i)approximately three months after his arrival in Australia, his family told him that Sri Lankan intelligence agencies had questioned family members regarding his whereabouts.
The decision of the Tribunal
The Tribunal found that certain aspects of the applicant’s claims were not credible. In particular, the Tribunal found that the applicant had given inconsistent evidence by failing to mention three aspects of his claims in the initial statutory declaration attached to his visa application; his employment of a person connected with the LTTE, the investigations by Sri Lankan intelligence after he left Sri Lanka and his detention for three days in 2006[8]. As a result of this, the Tribunal did not accept these aspects of the applicant’s claims. Nor did it accept that the applicant had been assaulted by attackers on a motorcycle or that the army had threatened him whilst he operated his own shop[9]. The Tribunal concluded that “there is no credible evidence as to the true reasons the applicant left Sri Lanka” or “as to why the applicant does not want to go back to Sri Lanka”[10].
[8] CB 2439-240 at [83]-[92]
[9] CB 240-241 at [93]-[99]
[10] CB 241 at [100]
The Tribunal also undertook a detailed analysis of the applicant’s claims by reference to independent country information. The Tribunal found that the risk of harm faced by a Tamil from an area previously controlled by the LTTE upon return to Sri Lanka is remote. The Tribunal found that the applicant did not have any characteristic (e.g. connection with the LTTE or perceived opposition to government) which would alter this risk profile[11].
[11] CB 241 at [103]-[105]
In addressing the applicant’s claims to fear harm on the basis of his status as a returnee or as a person who departed Sri Lanka illegally, the Tribunal also referred to independent country information[12]. After assessing this information, the Tribunal concluded that the risk of harm arising from these matters was “remote”[13].
[12] CB 242 at [106]-[114]
[13] CB 243 at [115]
Having reviewed the country information, the Tribunal then assessed the specific submissions made to it. In line with its earlier findings in respect of the applicant’s credit and the country information, the Tribunal found:
a)the applicant is not a person who would be suspected of involvement in the LTTE[14];
b)the risk of the applicant suffering harm from the army or the Sri Lankan government as a Tamil from Jaffna is remote[15];
c)the risk of the applicant suffering harm as a failed asylum seeker returning to Sri Lanka were not substantiated by reliable information[16]. Nor would the manner in which the applicant departed Sri Lanka result in a prison sentence[17].
[14] CB 243 at [119] see also CB 245 at [135]
[15] CB 242 at [122], see also CB 244 at [133]
[16] CB 246 at [149]
[17] CB 247 at [159]
On the basis of the findings summarised above, the Tribunal held that the applicant did not have a well-founded fear of persecution[18].
[18] CB 248 at [161]-[164]
In assessing the applicant’s claims for complementary protection, the Tribunal held[19]:
In essence, it is claimed that the applicant meets the complementary protection criteria on the same grounds that his fear of persecution is well founded. For the same reasons the Tribunal finds the applicant does not have a well founded fear of persecution, it also finds that there is not a real risk he will suffer significant harm in Sri Lanka.
[19] CB 248 at [165]
Notwithstanding this general conclusion, the Tribunal did separately consider whether any harm arising from the applicant’s alleged illegal departure from Sri Lanka would amount to significant harm for the purposes of s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). It concluded that there was no “real risk” of such harm arising[20].
[20] CB 248 at [167]-[168]
The judicial review application
These proceedings began with a show cause application filed on 5 September 2013. The applicant now relies upon an amended application filed on 21 May 2014. There is one particularised ground in that application:
1. The RRT erred in failing to ask itself the correct question, or asking the wrong question, with respect to the claims to complementary protection under s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act).
Particulars
a. The RRT made findings that:
i. The Applicant is a Tamil from Jaffna.
ii. Jaffna was formerly controlled by the LTTE.
iii. The Applicant was forced to do training for the LTTE.
iv. On five occasions between 1996 and 2002, the Applicant was detained by the Sri Lankan Army and was maltreated.
b. The RRT determined that, based on these findings, Applicant’s claim under s.36(2)(a) of the Act failed because he did not have a well-founded fear of persecution.
c. The RRT determined that “for the same reasons” as the finding that the Applicant did not have a well-founded fear of persecution, the Applicant’s claim under s.36(2)(aa) of the Act failed because there was not a real risk he will suffer significant harm.
d. The legal test for whether claims under s.36(2)(aa) of the Act are established requires attention to a different kind of conduct for the purpose of what might amount to “significant harm”, than for what might amount to “significant harm” for the purpose of s.36(2)(a) of the Act.
e. The RRT applied the wrong test in considering whether the findings that were made established the existence of protection obligations under s.36(2)(aa) of the Act, applying the test as to what amounts to “significant harm” for the purpose of s.36(2)(a) of the Act, rather than the test as to what amounts to “significant harm” for the purpose of s.36(2)(aa) of the Act.
I have before me as evidence the court book filed on 1 October 2013.
The parties made both oral and written submissions.
Consideration
In essence, the applicant’s complaint is that the Tribunal did not give proper consideration to whether the applicant’s claims for complementary protection satisfied the statutory criterion in s.36(2)(aa) of the Migration Act. Instead, it is claimed, the Tribunal relied on its findings made in respect of the applicant’s claims under the Refugees Convention. As a result, it is claimed, the Tribunal asked the wrong question because it failed to take into account the fact that the test for complementary protection under s.36(2)(aa) is separate to, and different from, the test for assessing refugee claims under s.36(2)(a).
The applicant correctly submits that the test applicable under s.36(2)(aa) is different to the test applicable under s.36(2)(a). Importantly, the test of “significant harm” applicable to claims of complementary protection is distinct from the test of “serious harm” relating to persecution applicable to refugee claims[21].
[21] see MZYYL v Minister for Immigration (2012) 207 FCR 211 at [19]
In SZFSK v Minister for Immigration & Anor[22], I found that the Tribunal in that case had fallen into error by considering claims for complementary protection solely by reference to the test applicable to refugee claims. The correctness of that decision was not doubted in the decision of the Full Federal Court in SZSHK v Minister for Immigration [23]. It does not follow, however, that simply because the Tribunal applies its reasoning in relation to a Refugees Convention based claim for the purposes of a claim of complementary protection, the Tribunal will fall into error.
[22] [2013] FCCA 7
[23] [2013] FCAFC 125 at [35]
As Robertson J held in SZSGA v Minister for Immigration[24], each case must depend on its own facts and, in particular, the reasons of the Tribunal in each case[25]. Further, SZSFK does not stand for the proposition that findings of fact made in the course of considering refugee claims cannot be relied upon for the purpose of assessing complementary protection claims[26].
[24] [2013] FCA 774 at [57]
[25] see also SZSHK v Minister for Immigration[2013] FCAFC 125 at [35]
[26] MZZIA v Minister for Immigration & Anor [2014] FCCA 717 at [20]
Consistently with the principles set out in the previous paragraph, it is not always necessary for the Tribunal to give extensive reasons for the rejection of complementary protections claims. This is especially so where the facts giving rise to the complementary protection claims are the same as those upon which refugee claims are based. In particular:
a)it is sufficient for the Tribunal to refer to its previous findings where the effect of those previous findings was that the Tribunal did not accept that the events which were said to give rise to the risk of harm actually occurred[27]. This is consistent with the principle that the Tribunal has no obligation to give consideration to a claim where the factual premise upon which the claim depends has been rejected[28]; and
b)where the Tribunal, in the course of considering an applicant’s refugee claims, makes a finding that there is not a real chance[29] of the applicant suffering any harm by reason of a particular matter, it is open for the Tribunal to rely on this finding when rejecting a complementary protection claim arising from the same facts[30]. That is, a finding that there is not a real risk of any harm is sufficient to dispose of claims to fear both serious harm under s.36(2)(a) and significant harm under s.36(2)(aa).
[27] see SZSGA v Minister for Immigration [2013] FCA 774 at [56]; SZSHK v Minister for Immigration & Anor [2013] FCCA 2017 at [75]-[76]
[28] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
[29] It may be noted that the “real chance” test applicable to claims under s. 36(2)(a) of the Migration Act is equivalent to the “real risk” threshold applicable to claims under s. 36(2)(aa) of the Migration Act: see Minister for Immigration v SZQRB (2013) 210 FCR 505 at [242]-[248]
[30] SZSRR v Minister for Immigration & Anor [2013] FCCA 1712 at [75]-[81]; SZRZN v Minister for Immigration & Anor [2013] FCCA 510 at [27]
When regard is had to the reasons of the Tribunal in this case and the principles stated above, the complaint reflected in the amended application is not made good.
Whilst many of the applicant’s claims were disbelieved, it is correct that the Tribunal accepted some parts of the applicant’s factual claims. Specifically, the Tribunal accepted that the applicant was from an area formerly controlled by the LTTE, had done training with the LTTE and was, on five occasions between 1996 and 2002, rounded up by the army and maltreated[31].
[31] CB 240 at [95]-[96]
The Tribunal considered whether these factual matters gave rise to a risk of harm[32]. The Tribunal found at [104] that the risk of a Tamil from an area previously controlled by the LTTE suffering harm for that reason alone was remote[33]. This finding was not expressed to be limited to the risk of “serious harm”. Rather, on a proper reading, the finding should be understood as having been made with respect to any type of harm. There is no reason why this finding could not be relied upon with respect to both the refugee claims and complementary protection claims.
[32] CB 241 at [103]-[105]
[33] see also [122]
The Tribunal also addressed the applicant's claims to have done training with the LTTE and to have been maltreated between 1996 and 2002[34]. The Tribunal found that the applicant would not be at risk of harm in Jaffna now or in the reasonably foreseeable future[35]. Again, there is no reason why this finding could not be relied upon with respect to both the refugee criterion and the complementary protection criterion. It is not the case that the Tribunal found that there was no risk of persecutory harm, or harm for a Convention reason. Rather, the Tribunal found that there was no risk of any kind of harm.
[34] CB 243 at [117]-[119]
[35] at [118]
A more general analysis of the reasons of the Tribunal confirms that it applied the correct test to the applicant’s claims for complementary protection. The Tribunal stated the correct test at the outset of its reasons[36]. In applying this test, the Tribunal made reference to the language adopted in s.36(2)(aa)[37]. Further, in respect of the one claim where the Tribunal accepted the applicant may face some risk of harm (i.e. the risk of being prosecuted on account of his illegal departure from Sri Lanka), the Tribunal appreciated that it was required to separately consider whether this amounted to “significant harm” for the purposes of s.36(2)(aa)[38]. This is not, therefore, a case where the Tribunal erred in the manner considered in SZSFK.
[36] CB 227 at [16]-[20]
[37] CB 248 at [165]-[168]
[38] CB 248 at [167]-[168]
Conclusion
The applicant has failed to establish that the Tribunal decision is affected by jurisdictional error. It follows that the Tribunal decision is 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 thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 October 2014
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