SZTIB v Minister for Immigration
[2014] FCCA 1324
•27 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTIB v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1324 |
| Catchwords: MIGRATION – Application seeking review of Refugee Review Tribunal decision – Refusal of a Protection (Class XA) visa – No reviewable error – Whether complementary protection criteria apply – No applicable criteria – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 46A(2), 91X, 424A, 425, 427 |
| Minister for Immigration and Citizenship v SZHXF & Anor (2008) 166 FCR 298 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572 SZJJD v Minister for Immigration and Citizenship [2008] FCAFC 93 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 |
| Applicant: | SZTIB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2278 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 14 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Tamil interpreter |
| Counsel for the First Respondent: | Ms R. Francois |
| Solicitor for the First Respondent: | Ms A. Wong of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS
The Application filed on 26 September 2013 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZTIB.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2278 of 2013
| SZTIB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application filed by the applicant on 26 September 2013 seeking review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 9 September 2013. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
By orders of the Court made on 23 October 2013 the solicitors for the Minister were required to file a bundle of documents which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing by 20 November 2013. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
By orders made by the Court on 23 October 2013 the applicant was granted leave to file and serve any additional affidavits upon which he wished to rely. The applicant was also granted leave to file and serve a written outline of submissions and a list of authorities 14 days before the hearing. The applicant elected not to file any amended application, affidavit evidence or written submissions.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a 20 year old male citizen of Sri Lanka who arrived in Australia on 21 May 2012 as an irregular maritime arrival (CB 40, 42). On 23 September 2013, after the Minister exercised his power under section 46A(2) of the Migration Act 1958 (Cth) (the “Migration Act”), the applicant applied for a Protection visa (CB 24-25, CB 29 - 96).
The applicant claimed to fear persecution in Sri Lanka based upon his race as a Tamil, his imputed political opinion arising from his Tamil ethnicity, being opposed to the government and his membership of a particular social group being a failed Tamil asylum seeker (CB 57 at [13] –[15]).
On 7 January 2013 a delegate of the Minister refused to grant the applicant a Protection visa (CB 98 - 125). On 5 February 2013, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 126 - 162).
Proceedings before the Tribunal
On 25 February 2013 the applicant was invited to attend a hearing before the Tribunal set down on 5 April 2013 (CB 171 - 172). On 27 March 2013 the applicant’s solicitor provided submissions in support of his application (CB 177 - 207). In those submissions, the applicant’s solicitor also raised that the applicant would face harm as a returned asylum seeker (CB 187 at [54], CB 194 at [65] - [69]).
After the hearing on 26 August 2013 the Tribunal wrote to the applicant and invited him to comment on recent country information which related to the punishment in Sri Lanka for illegal departure from Sri Lanka (CB 217). On 4 September 2013 the applicant’s solicitor provided his response (CB 219).
On 10 September 2013 the Tribunal handed down its decision dated 9 September 2013 affirming the decision of the delegate of the Minister to refuse to grant the applicant a Protection visa (CB 222 - 248).
The Tribunal accepted that the applicant was a national of Sri Lanka (CB 237 at [77]) and was a young Tamil man from Udappu who worked as a fisherman (CB 241 at [113]). The Tribunal found that the applicant was not otherwise a witness of truth and that his account of events on which his protection claims were based was false (CB 240 at [104]). The basis of the Tribunal’s adverse credibility findings were the cumulative inconsistencies in the applicant’s evidence about the Criminal Investigation Department (“CID”) searching his home in 2012, the circumstances in which he fled in February 2012 and his reactions to the home visits by the CID (CB 237 at [79] to 240 at [103]).
The Tribunal then considered and rejected the following objective factors that could give rise to Australia having protection obligations, being:
a)The applicant’s race as a Tamil (CB 241 at [115]-[116], CB 243 at [133], CB 244 at [135]- [136]);
b)The applicant’s status as a failed asylum seeker having left the country illegally (CB 242 [117] to CB at [126], CB 244 at [138] – CB 246 [151], CB 246 at [154] –[155]);
c)The applicant being imputed with a political opinion of support for the LTTE (CB 244 at [134]); and
d)The applicant’s religion as a Hindu (CB 244 at [137]).
Current Proceedings
On 26 September 2013 the applicant filed an application for judicial review in this Court which set outs three grounds of review, namely:
1. RRT DID NOT ASSESS MY CLAIMS FAIRLY
2. RRT DID NOT CALL ME FOR 2NT HEARING
3. RRT DID NOT PUT ALL ADVERSE INFORMATION TO ME FOR MY RESPONSE.
Applicant’s Submissions
None of the grounds of the application were particularised, and whilst the applicant was given the opportunity to file an amended application and to put on any affidavits containing additional evidence on or before 8 January 2014, he elected not to do so. The applicant further elected not to file any written submissions.
At the hearing held on 14 April 2014 I asked the applicant whether he had filed an amended application and/or written submissions. The applicant confirmed that he had not attempted to file such documents. The applicant expressed that he wished to make oral submissions.
The applicant claimed that the Tribunal had cited several reasons for rejecting his claims. The applicant submits that the Tribunal failed to discuss the matters that formed part of the decision. The applicant claims that the Tribunal accepted that if he were to be returned to his country of origin that he will be jailed and he will need someone to bail him out. The applicant claimed that he will be mistreated and/or persecuted because of his Tamil ethnicity. The applicant submitted that that information was not put to him for discussion. The applicant claimed that the Tribunal had discerned certain problems with the country information, but that the Tribunal did not discuss the problems which were applicable to his case. The applicant argued that if the Tribunal had put the issues to him that were relevant to the decision, he would have raised his concerns about them.
Minister’s Submissions
In respect of the first ground of review, the Minister noted that, lacking clarification, the ground called for impermissible merits review.
In respect of the second ground of review, the Minister submitted that there is nothing on the face of the Tribunal’s decision which suggests that a further invitation to a hearing was required to be issued by the Tribunal pursuant to s.425 of the Migration Act.
In respect of the third ground of review, the Minister noted that the only potentially adverse information relied upon by the Tribunal that had not been provided by the applicant was independent country information. The Minister then referred to the authorities in submitting that, pursuant to s.424A(3) of the Migration Act, such information need not be put to the applicant: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178; SZJJD v Minister for Immigration and Citizenship [2008] FCAFC 93; Minister for Immigration and Citizenship v SZHXF & Anor (2008) 166 FCR 298; SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415.
At the hearing Ms Francois, appearing for the Minister, highlighted the lack of specificity in the issues the applicant had raised. Ms Francois submitted that there appears to be only two aspects of the case that the applicant argues were not discussed with him. The first issue is that if he is returned to his country of origin he will be imprisoned with the need for someone to bail him out of prison. The second issue is that if he is in prison he will be mistreated due to his Tamil ethnicity.
Ms Francois referred the Court to the Tribunal’s Decision Record [127] (CB 243) which is the Tribunal’s account in respect of how it dealt with the country information and. The Tribunal states:
127. The country information mentioned earlier in this decision was discussed with the applicant and the representative at the hearing. The representative relied on submissions made by letter dated 27 March 2013 but the applicant made comments at the hearing. By letter dated 26 August 2013 country information was also provided to the applicant for comment and the representative responded on his behalf by letter dated 4 September 2013. These submissions and comments along with the submissions made by the representative at the interview with the delegate have all been considered by the Tribunal and dealt with below.
(CB 243)
The letter referred to at [127] of the Decision Record (CB 243) is located at CB 217 and is dated 26 August 2013 and it entitled “Opportunity to comment on recent country information – [SZTIB]”. Mr Francois argued it is shown that the Tribunal, beyond its statutory duties prescribed in the Migration Act, provided the most recent country information it obtained since the hearing for the applicant to comment upon. Ms Francois took the Court to [3] (CB 219) of the reply to the Tribunal’s letter, where the applicant’s representative stated:
3. Secondly, the Applicant states that he is at risk of punishment by the authorities more severe than the standard fine for his illegal departure, based on the Criminal Investigation Department (“CID”) allegations of his father’s links to the Liberation Tigers of Tamil Eelam (“LTTE”), as well as his failure to attend the CID’s camp upon their request. As such, the Applicant maintains he is at risk of serious and / or significant harm if he returned to Sri Lanka based on his illegal departure.
(CB 219)
Ms Francois submits that at a factual level the Tribunal’s reasons and correspondence indicates that the information that it relied upon was discussed with the applicant. Ms Francois took the Court to CB 244 at [142]-[144] where the Tribunal dealt with the applicant’s claims, including the potential for mistreatment. At CB 244 it states:
142. Country information was referred to asserting that some people sent back to Sri Lanka from Australia were held in poor conditions on remand for up to two weeks before being brought before a magistrate. Country information was also referred to about the prevalence of torture used by the authorities on those held in detention. It was submitted therefore that this should be considered in relation to the applicant being readmitted to the country on arrival from Australia.
143. For the reasons given above, the Tribunal finds that on arrival at the airport in Colombo, the applicant will be questioned about his identity; enquiries will be processed as quickly as possible and, depending on the day he arrives in Sri Lanka there is the possibility of the applicant being held in remand briefly before being brought before a magistrate.
144. The Tribunal finds that the possibility of the applicant being held briefly in remand in poor conditions before being brought before a magistrate does not equate with a real chance of suffering serious harm. As stated above, there is no reliable substantiated country information demonstrating that Tamils sent back to Sri Lanka after seeking asylum abroad suffer harm at the airport or after their arrival because they have been abroad and sought asylum.
(CB 244-245)
Ms Francois took the Court to [152]-[156] of the Decision Record (CB 246) where the Tribunal dealt with the applicant’s claims under the complementary protection provisions of the Migration Act. Ms Francois submitted that the Tribunal correctly applied the relevant test and concluded that for the same reasons as the applicant’s fear of persecution was not well founded there is not a real risk that the applicant will suffer significant harm in Sri Lanka.
Consideration
The applicant in these proceedings is a Sri Lankan citizen, born on 19 January 1993 in Udappu, Puttalam District, Sri Lanka who worked as a fisherman in Udappu. The applicant appears in this Court as a self-represented litigant with the assistance of a Tamil interpreter. As set out above he arrived in Australia on 21 May 2012 as an irregular maritime arrival. An initial entry interview took place on 4 July 2012 and a subsequent interview occurred on 10 July 2012. On 23 September 2012, the applicant was provided with notification pursuant to s.46A(2) of the Migration Act, informing him that he had been granted approval to lodge a Protection visa application. Within the letter it indicates:
A migration agent will be appointed to you and will be asked to prepare your Protection visa application. Any claim you make in your application will be assessed against the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention). If you are not found to engage Australia’s protection obligations under the Refugees Convention, your claim will be assessed under the complementary protection provisions of the Act…
(CB 25)
At CB 24 it is indicated that an IAAAS (Immigration Advice and Application Assistance Scheme) provider was allocated to assist the applicant being K. Petrovski of Fragomen (Australia) Pty Ltd (“Fragomen”). The Protection visa application (CB 37) indicates that Ms. Petrovski assisted the applicant in the preparation of Forms 866B and 866C (application for a Protection (Class XA) visa), Form 80 (personal particulars for assessment including character assessment) and a Form 956 (advice by a Migration Agent/ exempt person of providing immigration assistance). As part of that application, the applicant prepared a brief statement (CB 55-58).
On 7 January 2013, the Department notified the applicant that his application for a Protection had been refused. A copy of that notification was provided to the applicant by Fragomen, being his appointed solicitors and registered Migration Agent.
On 5 February 2013 an application for review of the delegate’s decisions was lodged with the Tribunal on behalf of the applicant which had been prepared and lodged by Fragomen on the applicant’s behalf. The receipt of that application was acknowledged by the Tribunal and on 25 February 2013 an invitation was extended to the applicant to appear before the Tribunal on 5 April 2013. In response to the hearing invitation letter, the applicant accepted the invitation to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. Fragomen, on 27 March 2013 lodged detailed submissions on the applicant’s behalf (CB 177-207).
The applicant, together with his adviser, attended a hearing before the Tribunal on 5 April 2013. The hearing was conducted with the assistance of a Tamil interpreter.
On 5 April 2013 the Tribunal provided the applicant’s adviser with a copy of the recording of the Tribunal hearing. On 26 August 2013, the Tribunal provided the applicant’s representative recent country information, stating that the Tribunal would like to give the adviser the opportunity to comment on recent country information which the Tribunal intended to rely upon in determining the applicant’s review application. Fragomen responded to that invitation on 4 September 2013 (CB 219). The Tribunal handed down its decision on 10 December 2013. All of the applications and submissions provided up to the stage of the Tribunal’s decision were prepared in a professional manner and in many respects in substantial detail. I have included the above information as it indicated that the applicant was professionally advised and represented up to the finalisation of the Tribunal hearing.
The application filed in this Court seeking review of the Tribunal’s decision is of completely different standard. The correct court form has been used and the entries have been typed, though they are extremely brief in nature. The three grounds of review, which have been reproduced above at [13], do not identify with any clarity an alleged error in the Tribunal’s decision and there is a complete absence of any particulars. It appears that this application has been prepared by somebody who has a very limited understanding of administrative law and the operation of the relevant migration law.
Ground 1 is effectively an expression of the applicant’s disagreement and disappointment with the ultimate outcome of the Tribunal’s decision and, in effect, is a request of this Court to engage in a review of the merits. As has been pointed out in many previous decisions of this Court, a merits review is not available: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 per Brennan CJ Toohey, McHugh and Gummow JJ at [31] where their Honours stated
31. … [A]ny court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision…
For the benefit of the applicant, a merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. These proceedings are a judicial review which asks whether the decision maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. A merits review, which appears to be what is being requested in Ground 1 of the application, provides a complete rehearsal of all the issues relevant to the application which involves the consideration of all of the relevant material as well as any new evidence. The reviewing body makes a decision about the merits of the application, unfettered by the earlier decision or the reasons of the decision-maker of the earlier decision. A merits review is not permissible and, consequently, this ground cannot be sustained.
Ground 2 suggests that the identified person providing the applicant with assistance to prepare his review application, does not fully understand the operation of Part 7, Division 4 of the Migration Act as there is no automatic requirement of the applicant to be called for a second hearing. In some circumstances where an applicant has been validly invited to appear for the Tribunal under the provisions of s.425 of the Migration Act and during that hearing issues arise, this may require the hearing to be adjourned (s.427(1)). Where such issues arise, an invitation to provide further information may be a necessity, and/or that of a second hearing. There is no evidence before the Court that such a request was made, nor is there a transcript of the hearing that may reveal such a request without it being referred to or documented in the Decision Record. On a fair reading of the Decision Record there is no suggestion that an invitation to a second hearing was contemplated or issued. On the material before me, I am not satisfied that Ground 2 of the application can be sustained.
Ground 3, in the absence of particulars, is vague in nature. As above, the Tribunal on 26 August 2013 (CB 215-217) provided the applicant and his adviser with recent country information that had come into its possession after the Tribunal hearing. The nature of the information is a country information report from Sri Lanka, dated 31 July 2013 and prepared by the Department of Foreign Affairs and Trade, which contains statements in respect of returnees being persecuted under the Immigration and Emigration Act of Sri Lanka for illegal departures. As part of that notification, the Tribunal indicated that it would like to finalise the application as soon as possible and has submissions on this particular issue have already been provided on his behalf. The Tribunal provided time for the applicant and his adviser to respond.
The applicant’s response was supplied on 4 September 2013 (CB 219). Other than this specific material, anything else that was possibly adverse to the applicant and required response or further addressing by the applicant could have been raised during the Tribunal hearing and the opportunity for the applicant to address such issues could have been provided. However, there is nothing before the Court to suggest such events took place. This can only be an assumption because Ground 3 is not particularised and the alleged adverse information is not disclosed. I note that the applicant was provided with a copy of the recording of the Tribunal hearing, but no transcript has been tendered. Further, the applicant did not in written or oral submissions identify material that might fall into this category.
In my view the written submission prepared by counsel for the Minister and set out at [19]-[23] above accurately address Ground 3 and this needs no further comment. This ground cannot be sustained.
In respect of the operation of the complementary protection provisions of the Migration Act (s.36(2)(aa)) the Tribunal Member has adopted the often seen approach of setting out the provisions of the complementary protection criterion in the Decision Record under the heading of “Relevant Law” at [15]-[19] (CB 225-226). In the Tribunal’s “Findings and Reasons” at [152]-[156] (CB 246) it addresses the operation of the complementary protection criterion to the particular facts of the applicant’s application and claims.
Since the Migration Amendment (Complementary Protection) Act 2011 (Cth) amended the Migration Act in March 2012, the Tribunal has been required to consider whether Australia has protection obligations to applicants for Protection visas under the complementary protection criterion. The applicant and those, if any, who are assisting him with his application in this Court are unlikely to be aware of the existence of this obligation in the Migration Act, but it was known to the Tribunal and the Tribunal has addressed this issue.
A convenient summary of these new provisions are contained in the then Bill’s Second Reading Speech on 24 February 2011. The new provisions establish a criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under the Human Rights treaties and other refugee conventions and is summarised as follows:
Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:
· the arbitrarily deprivation of life;
· having the death penalty carried out;
· being subjected to torture;
· being subjected to cruel or inhuman treatment or punishment; or
· being subjected to degrading treatment or punishment.
(Hansard, 24 February 2011)
The claims advanced by the applicant to seek protection from persecution as described in the Refugees Convention were rejected by the Tribunal. The claims were rejected primarily on the basis of credibility (see CB 240 at [104]) and on the evidence before it that there is not a real chance the applicant will face Convention-based persecution. In those circumstances the Tribunal found for the same reasons the applicant failed to engage Australia’s protection obligations under the complementary protection criterion and did not satisfy the relevant test. On a fair reading no error is apparent in this respect.
Conclusion
I note the applicant is, before this Court, a self-represented litigant with limited, if any, comprehension of litigation, particularly this jurisdiction, in Australia. I have read the contents of the Court Book and, particularly, the Decision Record and no error is apparent therein.
In the circumstances, I am satisfied that the three purported Grounds of review cannot be sustained and the application should be dismissed with the applicant to pay the first respondent’s costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 27 June 2014
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