SZTHL v Minister for Immigration

[2014] FCCA 1492

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1492

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka – applicant not believed – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

SZSGAv Minister for Immigration [2013] FCA 774

Applicant: SZTHL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2235 of 2013

Judgment of: Judge Driver

Hearing date: 11 July 2014

Delivered at: Sydney

Delivered on: 11 July 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S Given

Sparke Helmore

ORDERS

1. The orders made earlier today that:

   (a)the application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), with costs fixed in the amount of $6,000; and

   (b)the Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

   are set aside.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2235 of 2013

SZTHL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 20 September 2013 seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 19 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.

2. When the matter came before me for first court date directions on 16 October 2013, the applicant was represented by counsel.  Counsel informed me at that time that he understood his instructions were limited to the first court date directions.  I dispensed with the need for a show cause hearing and listed the matter for a final hearing today.  I also made procedural orders to prepare the matter for today’s hearing. 

3. In order to determine whether an interpreter would be required for today’s hearing, my associate had regard to correspondence from counsel stating that he had only been instructed to appear at the first court date.

4. When the matter was called at 10.23am this morning, there was no appearance by or on behalf of the applicant.  The matter was called a second time and again there was no answer to the call.  There was no explanation for the applicant’s non‑attendance.  Prior to coming on the bench this morning, my deputy associate attempted to contact the applicant on his nominated mobile telephone number.  That attempt was unsuccessful. 

5. The Minister’s solicitor tendered two documents, which I marked as Exhibit R1.  The first is a letter dated 2 July 2014, sent by express post to the applicant at his nominated address for service.  That letter reminded the applicant of today’s hearing and warned him that if he failed to attend, the Minister would seek orders for the matter to be dismissed with costs.  The exhibit also includes a facsimile transmission to counsel, who I am informed told the Minister’s solicitor that he had no instructions to appear today. 

6. In the circumstances, I made orders to dismiss the application on account of the applicant’s non‑attendance.  However, I set aside those orders when the applicant appeared before the Minister’s solicitor and the interpreter had left the Court precincts. 

7. The application before the Court is to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 19 August 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

8. The following statement of background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them is derived from the Minister’s outline of written submissions.   

9. The applicant is a citizen of Sri Lanka who arrived in Australia on 28 June 2012[1] as an Irregular Maritime Arrival (IME).

   [1] Court Book (CB) 38

10. The applicant lodged an application for a protection (Class XA) visa on 15 November 2013[2] together with a Statutory Declaration and other accompanying documents[3]. 

    [2] CB 21-88

    [3] CB 94-100

11. The applicant claimed to fear harm from the Sri Lanka Army, Sinhalese people and from paramilitary groups. He claimed that at the end of 2005 he was accused of being a member of the LTTE and beaten badly.

12. On 11 February 2013, a delegate of the Minister refused to grant the applicant a visa[4].  On 19 February 2013, the applicant applied to the Tribunal for a review of the delegate’s decision and appointed a representative[5].

    [4] CB 122-144

    [5] CB 146-151

13. On 12 March 2013, the Tribunal invited the applicant to attend a hearing[6] which the applicant accepted[7].  On 12 April 2013 the applicant’s representative provided a further written submission to the Tribunal[8].

    [6] CB 155-156

    [7] CB 234-235

    [8] CB 157-233

14. On 15 April 2013, the applicant appointed a different authorised recipient[9]. 

    [9] CB 237

15. On 16 April 2013, the applicant attended a hearing of the Tribunal at which he gave evidence and presented arguments with the assistance of his representative and a Tamil interpreter[10].

    [10] CB 243-245

16. On 19 August 2013, the Tribunal affirmed the delegate’s decision to refuse the applicant’s visa[11].

    [11] CB 248-261

Tribunal decision

1. The applicant’s representative submitted that the applicant feared harm by reason of his race, imputed political opinion and membership of the following particular social groups: young Tamil male; a person who has resided out of Sri Lanka for a period of time and an asylum seeker returnee from a western country[12]. The applicant’s representative also submitted claims in relation to the complementary protection criteria, namely that the applicant “holds a suspicious profile as a Tamil male without stable residence in Sri Lanka”[13].

   [12] CB 252 at [24]

   [13] CB 259 at [47]

2. The Tribunal found that the applicant was not a credible witness and did not accept any of his claims of having been detained by the authorities in Sri Lanka[14]. The Tribunal also found that the applicant’s “story and dates of when and where he lived and worked have in part changed” and that some of the variations were major and impacted significantly on his overall credibility[15]. The Tribunal found that the most significant variations were in relation to whether there were any incidents of harm in Colombo and Trincomalee[16]. The Tribunal also found that these variations went to the core claims made which was a “clear indication” that his claims were fabricated[17].

   [14] CB 257 at [33]

   [15] CB 256-257 at [30]

   [16] CB 256 to 257 at [30]

   [17] CB 257 at [31]

3. The Tribunal found it relevant that the applicant provided false and misleading information in his original application when he claimed that he was assessed by the UNHCR in Sri Lanka to be a refugee and then sent by them to India. The Tribunal noted that the applicant later retracted this claim but found it relevant in assessing his credibility[18].

   [18] CB 257 at [32]

4. On the basis of the Tribunal’s concerns with the applicant’s credibility, the Tribunal did not accept that the applicant was of any adverse interest from the authorities in Sri Lanka when he left there in about June 2006[19]. Further, the applicant made no claims to belong to or have been associated with any political party or group and made no claims of association with the LTTE[20]. The applicant claimed that his father belonged to a reporting group but he did not claim to fear harm as a consequence of this and the Tribunal did not accept that his father’s activities were of any consequence to him[21].

   [19] CB 257 at [35]

   [20] CB 257 at [35]

   [21] CB 257 at [35]

5. On the basis of the accepted independent country information, the Tribunal was not reasonably satisfied that the applicant would face any future harm in connection with his Tamil ethnicity, because he was a Tamil from the East of Sri Lanka or as a young male[22].

   [22] CB 258 at [39]

6. Whilst the Tribunal found that the applicant might be questioned on his return to Sri Lanka, it did not accept that he would face any harm as a consequence of this[23].

   [23] CB 258-259 at [41]

7. The Tribunal also found that as the applicant departed legally from Sri Lanka in 2006 he would not be arrested for illegal departure[24]. The Tribunal found that “most other people in refugee camps in India would have departed without documentation and perhaps illegally” but found that there is no indication that they were being arrested on return to Sri Lanka for illegal departure. The Tribunal did not accept that the applicant had any profile that would cause him to be of interest to the authorities for any matter[25]. The Tribunal concluded that the applicant’s fear of harm on return to Sri Lanka in the reasonable foreseeable future was not well founded and there was no real chance that he would suffer serious harm amounting to persecution for reasons of a Convention ground[26].

   [24] CB 258-259 at [41]

   [25] CB 258-259 at [41]

   [26] CB 259 at [42]-[43]

8. The Tribunal accepted that the applicant would be questioned upon return to Sri Lanka about where has been and that he has been displaced by the civil war, but did not accept that this would “cause him any concern on return” and accordingly did not accept that the applicant satisfied the complementary protection criteria[27]. 

   [27] CB 259-260 at [48]-[49]

The present application

1. These proceedings began with a show cause application filed on 20 September 2013.  At the time I gave first court date directions in this matter on 16 October 2013, the applicant was represented by counsel.  At the trial of the matter today, the applicant represented himself.  I gave the applicant the opportunity to file and serve an amended application and additional evidence.  He continues to rely upon the original application, which contains five grounds:

   Ground 1

   The Tribunal committed jurisdictional error as it did not properly look at my social group.

   Particulars

   The Tribunal did not look at my social group being young Tamil male from my part of Sri Lanka instead the Tribunal looked at the young male from particular region.  The Tribunal did not look at my residence in India.

   Ground 2

   The Tribunal committed jurisdictional error as it did not properly look at my complementary protection.

   Particulars

   The Tribunal did not look at my situation, my father’s involvement in politics and the risk it posed to me as young Tamil male from my part of Sri Lanka.

   Ground 3

   The Tribunal erred in its assessment of well-founded fear.

   Particulars

   The Tribunal did not look at my encounter with the authorities.

   Ground 4

   The Tribunal erred when it adopted a particular standard of proof instead of looking at the (see RRT decision paragraphs 31-39).

   Ground 5

   The Tribunal committed jurisdictional error as it denied procedural fairness by the Tribunal not allowing the Applicant to properly present its case. (errors in original)

2. I have before me as evidence the court book filed on 15 October 2013. 

3. I also received, in part as evidence and in part as a submission, the applicant’s affidavit filed with his application. 

4. The applicant also sought to tender a bundle of additional documents.  That tender was objected to by the Minister.  I marked the documents for identification prior to hearing argument on the grounds of review.  I concluded that the documents had some bearing on Ground 5, which asserts procedural unfairness.  I received the bundle of documents as Exhibit A1.

5. There is no substance to Grounds 1 to 4 in the application.  As noted in the Minister’s submissions, the first ground contends that the Tribunal failed to consider various claims which were, as I pointed out to the applicant in argument, clearly dealt with.  For example, the applicant claims that the Tribunal erred in failing to consider that the applicant was a young Tamil male from Sri Lanka as opposed to a young Tamil male from a particular region.  Contrary to this assertion, the Tribunal found that factors including being young and male would not put him at greater risk of such harm[28].

   [28] Tribunal decision at [39], CB 258

6. The second ground alleges that the Tribunal erred in its consideration of the complementary protection criteria by failing to consider the applicant’s situation, including his father’s involvement in politics.  However, the Tribunal did not accept that the applicant’s father’s activities were of any consequence to him[29].  The Tribunal did not accept that the applicant had ever been of adverse interest to the authorities in Sri Lanka[30].  

   [29] Tribunal decision at [35], CB 257-258

   [30] Tribunal decision at [48], CB 259-260

7. As I pointed out to the applicant in argument, there is no error in the Tribunal relying upon its findings on particular claims in relation to the refugee criterion in order to dispose also of claims to complementary protection.  In that regard I agree with and adopt the Minister’s submissions. 

8. As was established in SZSGAv Minister for Immigration[31] there is no jurisdictional error constituted by a Tribunal referring to its previous findings of fact under the complementary protection provisions as articulated, particularly where:

   a)those claims could not survive earlier findings of fact; and

   b)where the Tribunal address the criterion by reference to the language of the statute and its particular findings of fact which led to the conclusion that the Tribunal did not accept the appellant’s claim.

   [31] [2013] FCA 774 (at [56] to [57] per Robertson J)

9. Ground 3 asserts in general terms that the Tribunal erred in its assessment of well‑founded fear.  The particulars provided are that the Tribunal did not look at an encounter between the applicant and the authorities.  In argument the applicant said that the encounter was an encounter he had with the authorities after a bombing in Trincomalee in 2005.  Contrary to the assertion in the application, this alleged incident was considered in detail by the Tribunal.  The applicant’s claims are recited at [24] and [25] of the Tribunal’s reasons[32].  The Tribunal dealt with the claims on credibility grounds at [30] and [31][33].

   [32] CB 252-253

   [33] CB 256-257

10. Ground 4 asserts that the Tribunal adopted a particular standard of proof and refers to [31]-[39] of the Tribunal’s reasons[34].  As is pointed out in the Minister’s submissions, the assertion is unsustainable given that the Tribunal clearly applied the language of the Migration Act 1958 (Cth). I took the applicant in argument to the impugned paragraphs of the Tribunal’s decision. I put to the applicant that it was clear to me that the Tribunal was not in those paragraphs improperly applying some standard of proof.

    [34] CB 257-258

11. Ground 5 asserts a want of procedural fairness by the Tribunal.  The applicant contends that the Tribunal did not allow him to properly present his case.  No particulars were provided in the application, but the applicant developed the assertion in the course of oral argument.  The applicant advanced three concerns.  The first is that he was disadvantaged at the Tribunal hearing because of a hearing impairment.  The first difficulty is that the applicant conceded that he did not raise any problem at the Tribunal hearing.  Also, as I pointed out to the applicant today, there was no apparent difficulty in court before me. 

12. Secondly, while the documents comprising Exhibit A1 include a medical assessment that the applicant does suffer from a hearing impairment, the diagnosis was made on 23 July 2013.  This was well after the Tribunal hearing in April 2013.  The applicant conceded in argument that the diagnosis was not drawn to the Tribunal’s attention.  I conclude that there was no procedural unfairness in the Tribunal hearing by reason of any disability suffered by the applicant.

13. The second concern of the applicant is that there were interpretation difficulties at the Tribunal hearing.  The applicant pointed to only one alleged particular problem.  This was an incident in which the Tribunal member asserted that the applicant was not providing a responsive answer whereas the applicant thought that he had.  It is not clear to me whether the applicant’s assertion is that the presiding member was mistaken or whether there was a misinterpretation.  There is no transcript of the hearing available which might throw light on the issue.

14. I asked the applicant why he thought there were interpretation problems.  He said that he is proficient in both the English language and the Tamil language and so was aware when interpretation was not optimal.  I conclude from that that, if there were interpretation problems, the applicant was by no means the captive of the interpreter and could have raised them with the presiding member.  He did not do so.  I conclude that there was no procedural unfairness at the Tribunal hearing by reason of interpretation problems.

15. The applicant’s third concern is that he was unable to present corroborative documents to the Tribunal following the Tribunal hearing.  He also said that the hearing only ran for one hour[35] and that he was denied the opportunity to make a final statement to the presiding member following the presiding member speaking to his representative by telephone.  It is impossible to verify that assertion in the absence of transcript.  What can be established is that the applicant had from April until August 2013 to put anything further before the Tribunal that he or his agent may have considered appropriate.

    [35] The hearing ran for one hour and twenty minutes: CB 243

16. The remaining documents comprising Exhibit A1 are documents that the applicant maintains would have supported his case before the Tribunal if he had been able to present them.  There are a number of difficulties with that proposition.  One is that, with one exception, the documents appear to have all been created prior to the Tribunal decision.  The applicant asserted in argument that he was, nevertheless, unable to obtain them until two or three months ago.  The documents, on their face, might lend some support to the applicant’s claims, but that is debatable.

17. One of the documents is simply information downloaded from the internet about problems in Trincomalee in 2005/6.  Other documents are of uncertain provenance and reliability.  Some relate to the applicant’s sister rather than himself.  A document of some significance is what purports to be a photocopy of the applicant’s identity card issued by the Government of Tamil Nadu State in India.  That document identifies the applicant as a refugee, at least for the purposes of the State Government in India. 

18. When I asked the applicant why he was unable to provide these documents to the Tribunal prior to its decision, he referred to risk in obtaining them.  He conceded, however, that there would have been no risk in obtaining the copy of his Tamil Nadu identity card.  I accept that some of the documents, in particular the Tamil Nadu identity card, might have supported the applicant’s claims.  The fact is that they were not provided to the Tribunal prior to its decision.  There is no evidence whatsoever of anything said or done by the Tribunal that might indicate some promise or undertaking that the Tribunal would wait for or consider additional documents.

19. The applicant conceded in argument that he had, in his words, been “a bit slack” in obtaining documents.  It is unfortunate that he was not able to provide the additional documents to the Tribunal.  However, that is the result of the applicant’s own difficulties and there was no procedural unfairness in relation to them. 

1. 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.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,000.  The applicant doubted his capacity to pay in a timely way, or at all, but that is not a reason for the court to refrain from making a costs order. 

3. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 15 July 2014