SZTGQ v Minister for Immigration

[2014] FCCA 2067

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2067

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

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to apply the “real chance” test to integers of the applicant’s claim, failed to make findings of fact by reference to the “real chance” test and applied the Convention test to complementary protection claims.

Legislation:

Migration Act 1958, ss.36, 474

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

Applicant: SZTGQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2150 of 2013

Judgment of: Judge Cameron

Hearing date: 28 August 2014

Date of Last Submission: 28 August 2014

Delivered at: Sydney

Delivered on: 11 September 2014

REPRESENTATION

Counsel for the Applicant: Mr P. Bodisco

Solicitors for the Applicant: Rasan T. Selliah & Associates

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2150 of 2013

SZTGQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 29 May 2012.  On 14 September 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 primarily because of his race.  On 18 January 2013 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.

2. 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.

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

Background facts

1. The applicant made his claims for protection at an entry interview on 30 May 2012, in his protection visa application, in a statutory declaration attached to that application, at a departmental interview on 21 September 2012 and at a Tribunal hearing on 8 May 2013.  His representatives also made written submissions to the delegate dated 22 September 2012 and 23 September 2012 and provided further submissions to the Tribunal on 22 May 2013.

2. Most of the applicant’s claims were summarised in paras.6 and 7 of the Minister’s written submissions in the following terms:

   6.1The applicant claimed to be of Tamil ethnicity and Hindu religion, and claimed to fear harm from Singhalese people and the Sri Lankan authorities.

   6.2The applicant claimed to be a goldsmith and to have worked for a jeweller in Negombo, Colombo, and to have been harassed and threatened by Singhalese people there. His account differed as to whether the harassment came from other goldsmiths in the shop, or from other shop owners. They threatened that if he did not stop working in the jewellery store then one day he would disappear.

   6.3The applicant claimed to have been assaulted by three Singhalese men in December 2011, and believed that it was related to the threats he had been receiving. The applicant feared continued harassment and that he would be ‘disappeared’, and this was why he came to Australia.

   6.4At the RRT hearing, the applicant claimed to have been beaten in 2012 while he was in hiding, whilst on his way to a temple.

   6.5The applicant claimed that since he arrived in Australia unknown men had been to his father’s house asking about his whereabouts, and threatened his father and sister. The men said that the applicant was destroying the reputation of the Sri Lankan government by leaving illegally and seeking asylum in a foreign country. The applicant claimed to fear harm upon return to Sri Lanka due to his leaving the country illegally and seeking asylum in Australia.

   6.6The applicant also claimed to fear harm from the Sri Lankan army because of his Tamil ethnicity, because he would be perceived to be associated with the LTTE [Liberation Tigers of Tamil Eelam].

   …

   7.1In the submissions provided by the applicant’s migration agent [on 22 May 2013], it was claimed that the applicant would be penalised under Sri Lanka’s Immigrants and Emigrants Act due to his illegal departure, and that this would involve imprisonment and a fine. It was contended that the two penalties are not alternative sanctions, that persons who are convicted will be imprisoned for at least one year, and that it was not open to the RRT to conclude that the applicant will not be jailed. It was submitted that in light of the known facts about the applicant’s illegal departure it was inevitable that he would be convicted.

3. I adopt that summary.

4. The applicant also alleged at the Tribunal hearing that he would not be able to operate a goldsmith’s business from his home as his uncle did in Batticaloa, because the Karuna group would not allow it.  He said that the Karuna group would demand money from him because he had paid a lot to travel to Australia and might also have earned money while in Australia.

The Tribunal’s decision and reasons

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

   a)the Tribunal accepted that the applicant had worked as a goldsmith in Negombo and had been harassed by Sinhalese goldsmiths in the shop where he worked because the price of gold rose and they received fewer orders.  However, it did not accept that the treatment he had received from his Sinhalese colleagues, in the form of harassment not to take orders, was sufficiently serious to amount to persecution or significant harm.  It also did not consider that the low level verbal insults or threats to report him to the authorities constituted serious harm and it found that he had not been persecuted in relation to his employment.  The Tribunal noted that the applicant’s representatives had submitted that the treatment he had suffered had been because he was a Tamil whereas the applicant himself had claimed that he was ostracised by the Sinhalese because he had been receiving work which they wanted;

   b)the Tribunal did not accept that the applicant had been beaten by anyone in December 2011, including by his colleagues or people sent on their behalf because: 

   i)the applicant did not mention the beating at his first interview. Also, at the delegate’s interview the applicant merely said that he had been hit but at the Tribunal hearing he said that he had been beaten with a pole.  The Tribunal noted that the applicant had explained that inconsistency by saying that he did not see much because the beating had taken place quickly but it noted that he had recalled enough detail to remember that he had been beaten by three people;

   ii)the applicant gave evidence that he did not know the people who beat him.  The Tribunal noted that even if the applicant had been beaten, apart from the fact that the people who beat him were Sinhalese and spoke Sinhalese, there was no way of knowing if the beating was related to his colleagues; and

   iii)the applicant gave evidence that he had spent most of December 2011 in India on a pilgrimage.  The Tribunal stated that the applicant had said that he first travelled to his village, in Batticaloa, and fasted for fourteen days in November 2011 before travelling to India for twenty-one days in December 2011 and then spending five days at a temple in Negombo and living with a friend;

   c)the Tribunal did not accept that the applicant had been abused or beaten on his way to a temple in 2012 or that he had been in hiding at that time because it found that his evidence about those claims was unclear, confused, implausible and contradictory.  In that connection it noted that on the one hand the applicant claimed that he had been in hiding but on the other claimed that he had been followed by work colleagues.  The Tribunal noted that although the applicant claimed to have been in hiding, he had said that he had travelled from his home town to Negombo, which was an eleven-hour bus journey.  The Tribunal also noted that the applicant had not included that claim in his statutory declaration even though he claimed it had happened more recently than the claimed beating of December 2011, which had been included;

   d)the Tribunal did not accept that the authorities had been looking for the applicant in his home town.  Firstly, it noted that the applicant had been living and working in Negombo for fifteen years.  The Tribunal then noted that the applicant claimed that his absence from Sri Lanka had been discovered during a census to prepare the electoral roll but found that even if there had been a census, that would not have led the authorities to become aware that the applicant had left Sri Lanka or that his family would have been threatened for that reason;

   e)the Tribunal did not accept that the applicant’s family had been harassed by the Karuna group or that the group would prevent him from working as a goldsmith if he returned to his home region in Batticaloa because:

   i)although the applicant mentioned in his entry interview that he could not work in his home area because of armed groups who operated there, he did not make that claim in his statutory declaration or at his departmental interview and only mentioned the Karuna group at the end of the Tribunal hearing;

   ii)although the applicant claimed that the Karuna group would target him because they would think he had money after returning from Australia, no one in his family had been asked for money or threatened by the group;

   iii)the applicant’s uncle was a goldsmith in Batticaloa;

   iv)the applicant’s family had not been harassed by the Karuna group; and

   v)it would not be necessary for the applicant to return to Batticaloa as he had lived in Negombo for fifteen years before he travelled to Australia;

   f)the Tribunal noted that the applicant had claimed that if he returned to Sri Lanka he would not return to work in the same jewellery shop.  It found that the applicant would retain his skills as a goldsmith and therefore it did not accept that not returning to work at his former place of employment would prevent him from earning a livelihood, even if he returned to Negombo rather than Batticaloa.  It found that even if he did return to Batticaloa he would not be prevented from working as a goldsmith there.  The Tribunal noted in that regard that the applicant’s uncle worked as a goldsmith from his home in Batticaloa and that, as it had not accepted his claims in relation to harassment by the Karuna group, the applicant would also not be prevented from working as a goldsmith there.  The Tribunal concluded that the applicant did not face a real chance of persecution or face significant harm because of his work as a goldsmith;

   g)the Tribunal referred to the United Nations High Commissioner for Refugees (“UNHCR”) Guidelines which noted the risks facing individuals with certain risk profiles, including those suspected of certain links with the LTTE.  It noted that the applicant claimed that he had been arrested in 2002 during “the troubles” and had been released after one or two weeks, that afterwards the authorities had randomly checked on him but had last done so in 2011, that he had never been convicted of a crime in Sri Lanka and that he had registered for residence in Negombo.  When taking that evidence into account, the Tribunal found that the UNHCR Guidelines did not indicate that the applicant had a profile which gave rise to a real chance of persecution on the basis of his Tamil race.  It found that, given the applicant’s circumstances, there was no reason for him to be suspected of being connected to the LTTE and noted that the UNHCR Guidelines and other country information did not suggest that young Tamil males continued to be imputed with an LTTE profile.  The Tribunal concluded that the applicant did not face a real chance of persecution or a real risk of significant harm in Sri Lanka because of his Tamil race.  It was not satisfied that he would be suspected of having LTTE connections and face harm for that reason; and

   h)after referring to country information, the Tribunal accepted that the applicant had departed Sri Lanka illegally by boat and that he would be questioned on his return and might be detained in crowded conditions for up to a few days while awaiting a bail hearing.  It found that he might be charged and prosecuted under Sri Lankan law relating to illegal departure but found country information to indicate that in practice people faced only fines for illegal departure.  It found that such questioning, prosecution, detention or penalty as the applicant would face would not constitute serious harm.  The Tribunal also accepted that the prison conditions in Sri Lanka were generally poor but was not satisfied that the short-term nature of the imprisonment on remand which the applicant would face amounted to serious or significant harm.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The RRT has failed to apply the real chance test to the full integers of the Applicant’s claims under the complementary protection provision (sectin [sic] 36(2)(aa) of the Migration Act 1958).

   Particulars:

   By dealing with the question of:

   (a)Only the harm anticipated at the airport rather than in Sri Lanka proper-failing to deal with a claim squarely reaised [sic] by the Applicant during the hearing and not otherwise subsumed within the findings of greater generality in the decision;

   (b)Only the “likely” penalties under the immigrants and Emigrants Act at paragraph [98] of the decision as opposed to the “real chance” that he may face more serious penalties or harm; and

   (c)By failing to disaggregate the relative statutory formulae in sections 36(2)(a) and (aa) through repeatedly using the expresssoin [sic] “for the same reasons”.

Particular (a)

1. In his written submissions, the applicant said:

   12.The first proposition is that the Applicant squarely raised a claim to fear harm under the complementary protection provision on the basis of harm that he could face not just at the airport as such but once he returns to Sri Lanka proper.

   13.The claim was squarely raised by the Applicant in his own words and as contained in the Transcript.  [See paragraphs 478-484 on pages 25-26].

   14.The Tribunal sidestepped this issue, focussing entirely on the likely penalties he would face at the airport.  A fair reading of the Applicant’s claims turns on the proposition that the harm he anticipates will occur once he is in Sri Lanka proper and has been released from custody.

   15.The Applicant submits that the failure to deal with this important integer of the Applicant’s claim under complementary protection was egregious in the circumstances of the instant matter.

   (Emphasis in original)

2. The passage of the transcript to which reference was made in those submissions concerned the applicant’s claim to fear harm in Sri Lanka because he had left that country illegally and his claim that although the Australian government might protect him from harm at the airport, Australia could not protect him once he had left the airport and so he would remain at risk of significant harm for the remainder of his life.

3. Contrary to the allegation that this claim was not considered, paras.78 and 85-89 of the Tribunal’s decision reveals that it was.  However, at the hearing of this application only passing reference was made to the allegation in particular (a) as elaborated in the applicant’s submissions and instead the applicant pressed other matters of which no notice had been given, implying that the claim as propounded in the written submissions had been abandoned.  This Minister did not object to the applicant making a case which had not been foreshadowed.

4. In his address to the Court the applicant submitted that the claims which the Tribunal had not considered were to the effect that:

   a)in a continuance of the harassment he had already suffered at their hands, the Negombo jewellers would make false complaints against him to the police; and

   b)the Karuna group would harm him at the instigation of the Negombo jewellers.

5. When asked to identify a record of such claims having been made to the Tribunal, the applicant referred to his advisers’ written submissions to the delegate of 22 September 2012 and, in particular, to the following passage:

   In summary, our client fears persecution because:

   ·    He was harassed, threatened and physically assaulted by Singhalese people and the authorities failed to provide him with adequate protection against serious harm.

   ·    The treatment he suffered at the hand of Singhalese people because of his Tamil ethnicity prevented him from earning a livelihood.

   ·    The Sri Lankan Government security agencies and affiliated paramilitary organisations may suspect that our client is linked with the LTTE.

   ·    He fled Sri Lanka illegally and he fears he will be intercepted on return to Sri Lanka, accused of supporting the LTTE and consequently seriously mistreated.

6. At first the applicant submitted that he had squarely made the claims he said the Tribunal had failed to consider and that this was to be seen in that part of his advisers’ written submissions quoted above.  He then argued that such claims could be inferred from that part of the submissions.

7. The passage in question does not support the applicant’s new allegation and I have not identified elsewhere in his advisers’ written submissions anything which would suggest that a claim of the sort now propounded by him was made by him to the Tribunal.

8. In his address in reply the applicant then raised for the first time the following passage from the transcript of the Tribunal hearing:

   Tribunal:       So, so what kind of harm are you talking about?

   Applicant:They will call me and verbally abuse me, threaten me saying I shouldn’t work there and they will threaten me saying, you know, there were many abduction and people might and people had killed so if you continue that will happen to you as well.

   …

   Applicant:Yes, they do threaten me – sorry – the [sic] did threaten me at work and so I was so scared that I never go outside.

   Tribunal:       What did they say to you?

   Applicant:So they use to say, um, like haven’t you packed your bag, going back to you [sic] village because can’t you go over there and work over there.  So, um, if you continue work over here were [sic] will actually inform about you to the authorities over here.

   Tribunal:       What would they say?

   Applicant:         I don’t understand.

   Tribunal:You said that if you continue to work there they will inform about you to the authorities.  What would they say to the authorities?

   Applicant:So they use to say people like especially from my ethnicity who works in Colombo for longer period like this, they might have support form [sic] LTTE.  It had happened to many people like this before.  They have been abducted, they have been killed.

1. The Tribunal did not deal with this claim specifically but it rejected the applicant’s other claim to fear persecution through a perceived association with the LTTE.  The finding on that latter claim was of sufficient generality that the claim made in the passage quoted above did not need to be addressed separately.  As a result, I do not infer that the Tribunal failed to consider the applicant’s claim to fear denunciation as an LTTE sympathiser.

2. In the circumstances, particular (a), in all three of its manifestations, is not made out.

Particular (b)

1. In support of his allegation that the Tribunal had considered his claim to face significant harm upon a return to Sri Lanka by reference to the balance of probabilities rather than by reference to whether there was a real chance of such harm befalling him, the applicant said in his written submissions:

   20.In the instant matter, the Tribunal has explicitly drawn into its consideration under the complementary protection provision its analysis elsewhere in the decision.  The Applicant notes:

   a)At [80], the Tribunal had regard to the fact of the laws in Sri Lanka being applied “to anyone who left Sri Lanka illegally” – a fact simply not relevant to the Tribunal’s determinations under section 36(2)(aa) of the Act; [CB 228 at 80]

   b)At [81], the Tribunal enquired about why the Applicant’s family had respondent to the inquiries of the authorities by explaining that he had left Sri Lanka – factors the Applicant could only give speculative evidence regarding; [CB 228 at 81]

   c)At [87], the Tribunal accepted the proposition that “there might be a risk of detention and other mistreatment to those who come to the adverse attention of the Sri Lankan authorities as LTTE supporters or as having LTTE connections in particular

   21.The Tribunal then quotes DFAT Country Information Reports: [CB 231 at 3.8]

   3.8    For offences committed under the I & E Act, a prison sentence of up to five years and a fine of up to 200,000 Sri Lankan Rupees may be applicable.

   22.The Tribunal then held, at [93], that “the evidence indicates that, in practice, people face fines for illegal departure.” [CB 231].

2. The applicant submitted that these matters demonstrated that the Tribunal had considered, on balance, that he would face a fine rather than considering whether there was a real chance that he would face more severe punishment, in the form of a term of imprisonment in a Sri Lankan gaol, which would amount to significant harm.

3. Whether the applicant might be sentenced to a term of imprisonment or would be fined was a matter of fact for the Tribunal to determine on the evidence before it.  The applicant submitted that the real chance test applied to such fact finding, but that is not correct; the Tribunal can make such factual findings as are open to it on the evidence.  The real chance test is to be applied when the Tribunal turns its mind to whether, based on its findings of fact, an applicant’s subjective fears of serious or significant harm have a sufficiently objective basis that the grant of a protection visa is justified.

4. The Tribunal made an intermediate finding of fact concerning the penalty which the applicant would be likely to face in Sri Lanka upon his return as a person who had departed illegally and included that fact amongst the others facts it found when reaching its ultimate conclusion that it was not satisfied that he faced a real chance of serious or significant harm were he to be returned to Sri Lanka.  It was not required to apply the real chance test to that process of intermediate fact finding and did not err by not doing so.

Particular (c)

1. The applicant claimed that he faced a real chance of Convention-related persecution because of his work as a goldsmith in Negombo, because he was a Tamil, because as a Tamil he could be suspected of involvement with the LTTE and because his departure from Sri Lanka had been illegal.  He claimed that the same facts also gave rise to him facing a real chance of significant harm if he were returned to Sri Lanka.

2. In its reasons on the applicant’s complementary protection claims, the Tribunal set out the findings of fact it had already made on these issues when it addressed the applicant’s Convention-based claims earlier in its decision record.  In each case it then went on to say that “for the same reason” or “reasons”, it found that Australia’s complementary protection obligations were not engaged.

3. The applicant submitted that by stating that its decision on the complementary protection claims had been arrived at “for the same reason” or “reasons”, the Tribunal had been applying the Convention test to his complementary protection claims.  This allegation misunderstands the Tribunal’s reasons.  The Tribunal should be understood to have been saying that the same factual considerations which led it to conclude that the applicant did not have a well-founded fear of persecution for a Convention reason also led it to conclude that he did not face a real chance of significant harm were he to be returned to Sri Lanka. 

4. Given that the applicant relied on the same facts to ground his Convention and complementary protection claims, the Tribunal did not err by making findings on the factual allegations and then applying the tests individually to those facts.

Conclusion

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

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  11 September 2014