SZTHA v Minister for Immigration

[2015] FCCA 955

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 955

Catchwords:
MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal considered applicant’s claim based on imputed political opinion – whether Tribunal considered complementary protection claim – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947

Applicant: SZTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2183 of 2013

Judgment of: Judge Manousaridis

Hearing date: 20 August 2014

Date of Last Submission: 11 August 2014

Delivered at: Sydney

Delivered on: 17 April 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2183 of 2013

SZTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Sri Lanka and an ethnic Tamil, seeks judicial review of the decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

The applicant’s claims for protection

1. Before the Tribunal, the applicant claimed he feared he would be harmed from two sources if he were to return to Sri Lanka. One was the paramilitary group known as the Karuna group. His fear of harm from that group was based on a number of incidents that occurred when the applicant was in Sri Lanka. One related to farmland that was in the name of the applicant but which was previously owned by the applicant’s grandfather. The Karuna group threatened the applicant with violence unless the applicant assigned the land to the Karuna Group. Another incident related to the applicant’s refusing to continue to transport a Karuna Group figure (KGF) on a rickshaw for free. A third incident related to the applicant’s demanding that the KGF stop harassing the applicant’s sister.[1] The applicant’s father made arrangements with people smugglers for the applicant to leave Sri Lanka to avoid the applicant being harmed by the Karuna Group.

   [1] CB19-20

2. The second source of fear of harm is the Sri Lankan government. The applicant claimed that if he returns to Sri Lanka he would be arrested at the airport, and that the Criminal Investigations Division will torture him and beat him up.[2] That would occur because he had left Sri Lanka illegally, which would raise questions in the minds of the Sri Lankan authorities, and also because there would be imputed to him political opinion held by the Liberation Tigers of Tamil Eelam (LTTE). The applicant claimed that in 2002 or 2003 he received a letter from the LTTE that, as the eldest son in his family, he needed to join the LTTE.[3] He said he later became aware the LTTE had kidnapped his father.[4]

   [2] CB175

   [3] CB181, [44]

   [4] CB181. [44]

Tribunal’s reasons

1. The Tribunal did not accept the applicant was a reliable or credible witness.[5] In particular, the Tribunal did not find credible the applicant’s claims that he left Sri Lanka to escape conflict with members of the Karuna Group over his land, and it did not accept the applicant was ever threatened with serious or significant harm by KGF.[6] The Tribunal found the applicant’s evidence about the threats made by members of the Karuna Group who wanted his land to be vague.[7] The Tribunal also found there were significant inconsistencies between the applicant’s oral testimony and his written statement of claims, and it did not find convincing the explanation the applicant gave for those inconsistencies.[8]

[5] CB177, [24]

[6] CB177, [24]

[7] CB177, [29]

[8] CB177-178, [29]

1. The Tribunal also did not accept the applicant’s claims based on harm by KGF. The Tribunal accepted KGF was a neighbour of the applicant who on occasion was rude to the applicant’s sister, that the applicant refused to drive KGF in his rickshaw, and that KGF may occasionally have been verbally abusive towards the applicant.[9] The Tribunal did not accept, however, that KGF ever threatened to shoot the applicant or otherwise cause the applicant serious or significant harm. It found the applicant embellished his evidence about a minor conflict with a neighbour to advance his claims for protection.[10]

   [9] CB181, [41]

   [10] CB181, [41]

2. The Tribunal had concerns about the applicant’s claim that his father had been abducted by the LTTE because the applicant did not include that claim in his written application for a protection visa; he first raised the claim during his interview with the delegate. The Tribunal extended to the applicant, however, the benefit of the doubt, and accepted that in around 2002 or 2003 the LTTE wrote to the applicant’s family seeking to recruit the applicant, and that the applicant’s father was abducted for three months and then released.[11] The Tribunal found, however, the applicant did not fear being imputed with a pro-LTTE opinion. The basis of that finding was the applicant’s not including any such claim in his written application for a protection visa.

   [11] CB181-182, [45]

3. In any event, the Tribunal found there was no objective basis for the applicant fearing harm on account of his being imputed with a pro-LTTE political opinion. Four years had passed since the end of the civil war; the LTTE is a spent force; the evidence before the Tribunal did not indicate the applicant had ever been imputed with pro-LTTE political opinion;[12] and the applicant’s father, although briefly detained in 2006, currently lives in Sri Lanka and there was no evidence to suggest his father or family are of any interest to the Sri Lankan authorities.[13] The Tribunal also found that at the time the applicant left Sri Lanka he was not a person of any interest to the Sri Lankan authorities for any reason.[14]

   [12] CB182, [46]

   [13] CB182, [47]

   [14] CB182, [49]

4. The Tribunal also found there was not a real chance the applicant would face harm in the foreseeable future because of his ethnicity. In particular, the Tribunal considered whether the applicant fell within any of the groups the 2012 UNHCR Guidelines identified as being at elevated risk of harm from the security forces or paramilitary groups. It found the applicant did not fall within any of those groups, and the applicant did not face a real chance of harm because of his Tamil ethnicity.[15]

   [15] CB185-186, [58]-[62]

5. The Tribunal considered whether the applicant had a well founded fear of harm that may arise from his being an asylum seeker who has been forcibly returned to Sri Lanka. The Tribunal accepted the applicant may be charged in relation to breaches of the Immigration and Emigrants Act 1949 (Sri Lanka). The Tribunal, however, found that, even though the Act “itself expresses the punishment to be a prison sentence from 1 to 5 years and a fine of 50,000 to 200,000 Sri Lankan Rupees”, the ultimate punishment “is most likely to be a fine and not a custodial sentence”. The Tribunal further found that this punishment did not amount to persecution for a Convention reason because it is the result of the enforcement of a generally applicable law and would not, in any event, amount to serious harm.[16]

   [16] CB188, [67]-[68]

6. Finally, the Tribunal considered whether any of the matters it considered disclosed substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The Tribunal was not satisfied there was such a risk.[17]

   [17] CB191-193, [77]-[88]

Grounds of application

1. The application contains two grounds of review. The first ground is as follows:

   RRT erred in law with the error being a jurisdictional error as it failed to constructively find that the Applicant is a refugee.

   Particulars

   a)Applicant claimed he refused to hand over land to a militia leader-politician and the second respondent failed [to] accept that the applicant did not support that politicians [sic].

2. The applicant, who was not legally represented, made some submissions when invited to do so in relation to this ground. The applicant only repeated some of the claims he made to the Tribunal. He stated that the Karuna people had asked for the land, and that the applicant heard that many people had been hit by that group, and that the applicant may be killed or harmed by the Karuna Group if he returned to Sri Lanka. The applicant also submitted that there are a lot of Tamil people who are still hiding and living and suffering.

3. These submissions do not disclose any jurisdictional error by the Tribunal. They repeat submissions the applicant made to the Tribunal in support of his claim for a protection visa, and which the Tribunal did not accept. As I informed the applicant at the hearing, the role of this Court is not to consider whether the applicant had a valid claim for a protection visa, but to determine whether the Tribunal undertook its task when reviewing the applicant’s claims according to law.

4. As for the ground stated in the application for review, it cannot be made out. The gist of the ground is that the Tribunal failed to consider that the applicant may be imputed with a pro-LTTE political opinion. As my brief summary of the Tribunal’s reasons shows, the Tribunal considered the question whether the applicant would be imputed with a pro-LTTE political opinion; and the Tribunal’s reasons for decision demonstrate the Tribunal considered that question in detail.

5. The second ground of review stated in the application is:

   RRT erred in law with the error being a jurisdictional error in that it did not consider the aspects of Complementary protection obligations.

   Particulars

   a)Applicant fears that if he returns to Sri Lanka he will be harmed.

6. The applicant, in response to my invitation, made a number of submissions. As with his submissions in relation to ground 1, the applicant’s submissions were directed to the merits of his claim to be granted a protection visa. He claimed he would be harmed if he returned to Sri Lanka. The applicant submitted that the Tribunal only considered information relating to Sri Lanka that was available in the media, and did not consider what “is going on behind the scenes there”. These submissions do not disclose any jurisdictional error by the Tribunal. In any event, the Tribunal did consider at some length country information relating to Sri Lanka.[18]

   [18] CB183-184, [50]-[54]

7. The second ground of review, as stated in the application, cannot be made out. The Tribunal did consider whether it was satisfied that the applicant’s claims came within s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). The Tribunal identified s.36(2)(aa) of the Act and identified the matters it had to consider when determining whether the applicant satisfied the criteria specified in that subsection. The Tribunal then identified each of the factual findings it made when considering whether the applicant’s claim satisfied s.36(2)(a) of the Act and determined in the light of those findings whether the applicant satisfied s.36(2)(aa) of the Act.

Other matters

1. The Tribunal had before it material that, on the basis of the reasoning of North J in WZAPN v Minister for Immigration and Border Protection & Anor,[19] would have made it reasonably arguable the Tribunal made a jurisdictional error. Given the Full Federal Court recently disapproved North J’s reasoning in WZAPN, it is unnecessary to consider the relevance of that reasoning to the application before me.[20]

   [19] [2014] FCA 947

   [20] BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41; SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40; SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39

Conclusion and disposition

1. The applicant has not demonstrated the Tribunal made any jurisdictional error. I will therefore dismiss the application, and order that the applicant pay the Minister’s costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 17 April 2015