SZTIQ v Minister for Immigration
[2015] FCCA 6
•30 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTIQ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 6 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution and as a returnee in Sri Lanka – significant aspects of the applicant’s factual claims not believed – applicant’s treatment on return found to be the consequence of the non discriminatory application of a law of general application – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) or misconstrued the test of persecution considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 424A, 425 |
| AZAAD v Minister for Immigration [2010] FCAFC 156 SZSXY v Minister for Immigration [2014] FCA 1183 |
| Applicant: | SZTIQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2362 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Solicitors for the Respondents: | Ms S Given of Sparke Helmore |
ORDERS
The application as amended on 18 November 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2362 of 2013
| SZTIQ |
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 3 September 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 based upon his Tamil ethnicity and his political opinion. The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Sri Lanka, arrived in Australia as an irregular maritime arrival on 11 April 2012[1]. On 29 June 2012, the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) permitting the applicant to make an application for a protection (Class XA) visa[2]. The applicant subsequently made an application for a protection visa on the same day[3]. On 16 August 2012, a delegate of the Minister refused to grant the applicant a protection visa[4].
[1] Court Book (CB) 223:[2]
[2] CB 34
[3] CB 35
[4] CB 107
On 20 September 2012, the Tribunal received an application for review of the delegate’s decision[5]. On 3 September 2013, following a hearing held on 15 January 2013, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa[6].
[5] CB 123
[6] CB 200, 222
By application dated 3 October 2013, and amended on 30 January 2014, then further amended by way of written submissions dated 4 November 2014, the applicant seeks judicial review of the Tribunal’s decision. On the basis of orders I made on 31 October 2013, any amended application was required to be filed by 19 December 2013. I granted leave for the applicant to rely on the new grounds raised in the written submissions.
Applicant’s claims
The applicant claimed to fear harm from the Thamil Makkal Viduthalai Pulikal (TMVP) and Sri Lankan authorities because of his imputed anti-government political opinion. The applicant claimed that the following factors gave rise to an imputed political opinion: he was a Tamil who originated from Batticaloa, he was involved with the Rural Development Society (RDS), he had spoken out against the TMVP, he had not complied with the TMVP’s demands, and because of his association with his brother. The applicant also claimed he would be perceived as associated with the Liberation Tigers of Tamil Eelam (LTTE) because he had sought asylum in Australia.
The applicant claimed that between 2000 and 2009 he was rounded up and questioned by the Sri Lankan Army (SLA). In April 2009, the applicant joined the RDS after returning from working in Qatar. He claimed that in June 2009, he was accused of instigating trouble and beaten by the TMVP. He was hospitalised for five days and forced to live with his brother for six months and keep a low profile to avoid harm. He claimed that in March 2012, he was sought out by the TMVP because he had “created trouble” in the past and asked to arrange for Tamils to attend a conference and anti-UN protest. The applicant claimed he refused to attend the conference and the TMVP went to his family home to look for him and sent a letter telling him to report to their camp. The applicant claims to have left Sri Lanka out of fear of punishment after a brief stay at his brother’s house[7].
[7] CB 87, 222: [11], [17], [37], [57]
The applicant also claimed he would face a heightened level of danger upon return to Sri Lanka because his work as a truck driver required him to pass through security check points on a daily basis[8]. In post‑hearing submissions, the applicant raised a further claim that his brother fled Sri Lanka in 2012 because of problems he (the brother) faced from opposition parties and that the applicant feared harm due to his association with his brother who had an anti-government political profile[9].
Tribunal decision
[8] CB 157, 225-226:[16], [17]
[9] CB 227:[28]
The Tribunal found that country information supported the applicant’s claims in a “general way”[10]. However, the Tribunal went on to consider the applicant’s particular circumstances against the relevant criteria[11].
[10] CB 230:[42]-[46]
[11] CB 231:[46]
Given the applicant’s evidence that his family members continued to live and work in Batticaloa (with the exception of his brother who had left Sri Lanka) the Tribunal found that they were not being threatened because of him or that the TMVP or other authorities looked for him at the family home[12]. Further, the Tribunal did not accept that the applicant would face harm because of his brother’s political profile[13].
[12] CB 232:[53]
[13] CB 232:[54]
The Tribunal accepted that the applicant joined the RDS in April 2009. However, it did not accept that the applicant had come to the adverse attention of TMVP in June 2009 or was beaten by them [14].
[14] CB 232-233:[55]
The Tribunal did not accept that the applicant left Sri Lanka, had to move, or keep a low profile for the reasons he claimed. It found that given the applicant’s static work and living arrangements, if he was of interest to the TMVP or its affiliates, they would have located him and “dealt with” him[15].
[15] CB 233:[56]
The Tribunal also found that if the applicant had been harmed as he claimed in 2009, he would have gone to India in 2010 to visit his sick uncle, despite his uncle’s health improving. The Tribunal considered that this evidence was inconsistent with the applicant’s claim he needed to keep a low profile to avoid harm[16].
[16] CB 233:[56]
The Tribunal did not accept the applicant’s claims that the TMVP were looking for him in March 2012 as “reasonable or plausible”[17]. Further, at the Tribunal hearing, the applicant conceded that he had taken steps to leave Sri Lanka before the letter provided (in support of his claims) from the TMVP came to his or his family’s knowledge[18]. The Tribunal also found that the letter from the TMVP and a medical form provided by the applicant were not reliable in light of country information regarding the prevalence of document fraud in Sri Lanka. It noted that these concerns were discussed with the applicant at the hearing[19].
[17] CB 233:[57]
[18] CB 233:[57]
[19] CB 234:[58]
As a returnee to Sri Lanka, the Tribunal found that the applicant would be dealt with under laws of general application. The Tribunal accepted that being a Tamil asylum seeker returning from Australia, “especially given the area he originates from”, the applicant would be questioned and he would encounter “some harassment” from authorities. However, the Tribunal found there was no real chance he would be targeted for serious harm, or that the relevant law would he applied in a discriminatory way[20].
[20] CB 234:[59]
The Tribunal accepted that the applicant had a pre-existing profile in Sri Lanka. However, the Tribunal did not accept that the applicant would be perceived as an LTTE member or supporter for the reasons he claimed[21].
[21] CB 234:[60]
The Tribunal noted that the applicant also claimed he would be imprisoned for his illegal departure and this would expose him to torture, cruel and inhumane and degrading treatment which was prevalent in Sri Lankan prisons. The Tribunal found that there was no real chance or real risk the applicant would be arbitrarily detained or seriously mistreated. Further, the Tribunal did not accept the applicant’s situation would be worsened upon return because the government remains “sensitive” to a future LTTE threat, or that he would be identified as an LTTE member or supporter[22].
[22] CB 235:[61]
The Tribunal also rejected any submission that Sri Lankan laws preventing irregular departure from Sri Lanka breached the International Covenant on Civil and Political Rights[23].
[23] CB 235:[62]
The judicial review application
These proceedings began with a show cause application filed on 3 October 2013. The applicant now relies upon an amended application filed in court by leave on 18 November 2014. The grounds in the amended application are:
1. The Second Respondent breached section 425 of the Migration Act 1958.
Particulars:
The Second Respondent engaged in legal error by not inviting the applicant to give evidence and present arguments relating to an issue under review as required under section 425 of the Migration Act 1958 (Cth) – namely the credibility of the applicant.
2. The Second Respondent has applied the wrong test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth).
Particulars
2.1 By undergoing a qualitative assessment of the nature and degree of the harm experienced by the applicant when being remanded by the authorities at the airport, the Tribunal failed to apply the test of serious harm pursuant to s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA 947 at [30] and [45].
I have before me as evidence the court book filed on 15 November 2013. In addition, there are two affidavits annexing a transcript of the hearing conducted by the Tribunal on 15 January 2013. The first transcript is annexed to an affidavit made by Yathushiya Mahenthirarasa made on 13 May 2014. The second transcript is attached to an affidavit made by Charles Frederick Stanford on the same day. I was told at the trial that there were some differences between the two transcripts and at that time it was not clear whether any of the differences were material. In view of the uncertainty, I received the transcripts as an aide memoir. I was advised after the trial that the differences between the two transcripts are not material. I have no reason to believe that either transcript is not an accurate record of what occurred at the Tribunal hearing. For convenience, I have referred to the transcript prepared by Ms Mahenthirarasa as that was the transcript referred to by counsel for the applicant at the trial.
The applicant and the Minister both made oral and written submissions.
Consideration
Did the Tribunal breach s.425 of the Migration Act?
The applicant contends that the Tribunal fell into jurisdictional error by not giving the applicant a sufficient opportunity to give evidence or make submissions on two determinative issues arising in relation to the decision under review:
a)the first determinative issue involved the alleged inconsistency in the applicant’s claim that he decided not to travel to India in 2010 despite needing to keep a low profile in his home country[24];
b)the second determinative issue involved the letter from the TMVP and the implications of the applicant receiving it after he had already decided to leave Sri Lanka[25].
[24] CB 233:[56]
[25] CB 233:[57]
In relation to the first issue, the Tribunal concluded that the events of June 2009 were fictitious after concluding that the decision not to travel to India in 2010 was “not consistent with the applicant’s claims that the situation was so difficult for him in his country at that time that he needed a low profile”. The applicant submits that this was central to the June 2009 events which the Tribunal did not accept as true. The inconsistency is also said to be central to the March 2012 events because the Tribunal did not accept those events as true partially on the basis that the June 2009 events were fictitious.
The applicant submits that, although during the hearing the Tribunal questioned him regarding the decision not to travel to India, the questioning only involved the applicant’s basic reasons for making that decision and the date the Indian visa was granted. The alleged inconsistency was not clearly put to the applicant.
Further, this inconsistency was not an issue in the delegate’s decision[26].
[26] CB 111
In the circumstances, the applicant contends that the Tribunal did not give him a sufficient opportunity to make submissions or give evidence on this alleged inconsistency.
Similarly, the adverse credit findings were used by the Tribunal to reject the contents of a letter from the TMVP dated 21 March 2012 and also a medical document dated in June 2009[27]. As the applicant was not placed on notice that his credit was in issue, the applicant submits that he was denied an opportunity to lead further evidence on this point.
[27] CB 234:[58]
I prefer the Minister’s submissions that there was no breach of s.425 on the facts of this case.
By letter dated on 2 November 2014, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review, which the applicant attended with his representative, on 15 January 2014[28]. I accept the Minister’s submission that there were no determinative issue about which the applicant was not on notice.
[28] CB 132:[200]
The applicant’s contention must bear on s.425 of the Migration Act rather than s.424A. For s.424A(1) of the Migration Act, “information” does not include the existence of doubts and inconsistencies or the Tribunal’s preliminary conclusions in weighing up the evidence by reference to those gaps[29].
[29] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]
The applicant also claims that the Tribunal failed to put the “implications” about the “letter from the TVMP” to him[30]. The Tribunal did not need to do this[31]. Further, that letter was provided by the applicant and therefore falls within the exceptions set out in s.424A(3) of the Migration Act. In any event, the Tribunal’s concerns with that letter were discussed with the applicant at the hearing[32].
[30] CB 92
[31] SZBYR at [18]
[32] CB 233-234:[57]
Credibility findings
The delegate found that he had “no reason to doubt the evidence of the applicant and…proceeded of the basis that he is generally credible”[33]. However, the delegate concluded that the applicant’s fears were not well-founded[34]. There is no requirement on the Tribunal to give an applicant notice of the issues of concern in advance of the hearing[35]. However, the High Court held in SZBEL v Minister for Immigration[36]:
[I]f the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what the other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.
[33] CB 111
[34] CB 113, 114, 117
[35] AZAAD v Minister for Immigration [2010] FCAFC 156 at [39]
[36] (2006) 228 CLR 152 at [36]
The Tribunal made findings relevant to the applicant’s credibility. In particular, the Tribunal “did not accept”:
a)the applicant’s family members were being threatened because of him[37].
b)that the applicant’s brother left Sri Lanka because of problems he faced from opposition parties due to his support for the Tamil National Alliance (TRA)[38].
c)the applicant’s claim that he came to the adverse attention of TMVP from June 2009 or that he was detained[39].
d)that the TMVP harmed the applicant in the past or that the applicant gave a “reasonable or plausible” explanation about why the TMVP would harm him in 2012[40].
[37] CB 232:[53]
[38] CB 232:[54]
[39] CB 232:[55]
[40] CB 233:[57]
These findings related to claims arising variously from the applicant’s statutory declaration[41] which was before the delegate; and the applicant’s pre-hearing and post-hearing submissions, both of which were not before the delegate[42]. The applicant’s additional claims and evidence (that were before the Tribunal by the time of the hearing) raised the Tribunal’s concerns about the applicant’s credibility. Those concerns were put to the applicant and discussed at the hearing[43]. In these circumstances, I accept that the Tribunal effectively discharged its obligations under s.425 of the Migration Act.
Did the Tribunal fall into the error identified by the Federal Court in WZAPN v Minister for Immigration[44]?
[41] CB 87
[42] CB 155, 205
[43] see transcript 21: [352], [354], [390]-[396], [405], [417], [433].
[44] [2014] FCA 947
Under this ground, the applicant relies upon the reasoning of North J in WZAPN at [30] and [45].
The factual foundation for the claim is said to be established at [59] of the Tribunal’s reasons. There the Tribunal held[45]:
As referred to above, having regard to the country information consulted by the Tribunal, the Tribunal accepts that Sri Lankan national who have left their country illegally and who are returning to Sri Lanka from overseas countries, including Tamil asylum seekers from western countries, are questioned and investigated and some suffer harm and harassment on their return to Sri Lanka, both at the airport on arrival during questioning and after that time, if they are perceived to be opposed to the Sri Lankan government and/or connected with or assisting the LTTE in either Sri Lanka or in an overseas country. The Tribunal accepts that the applicant, being a person who left the country illegally, will be dealt with on return to Sri Lanka under relevant laws of Sri Lanka which are laws of general application; it accepts that being a Tamil asylum seeker returning from Australia, especially given the area he originates from in Sri Lanka, he will be questioned and encounter some harassment from Sri Lankan authorities/officials on return to Sri Lanka including at the airport when he arrives in the country. The Tribunal does not accept however that there is a real chance that this applicant will be targeted for harm amounting to serious harm on return to Sri Lanka, or that laws of general application will be applied to him with discrimination, including because he is a Tamil male returnee from Australia/Tamil male from the Batticaloa area who is a failed asylum seeker who left the country illegally.
[45] CB 234
In his written submissions, the applicant had also contended that the Tribunal’s finding that the penalties for leaving Sri Lanka under the Sri Lankan Immigrants and Emigrants Act were imposed pursuant to a law of general application was illogical. That assertion was not pressed.
In my opinion, this case is readily distinguishable from WZAPN. Importantly, the Tribunal made no finding that the applicant would be detained on return to Sri Lanka. The applicant had claimed that he would be detained on arrival if he returned to Sri Lanka[46]. However, the Tribunal found that the relevant processes that the applicant would face would be the result of the non discriminatory application of laws of general application[47]. It may be accepted that the Tribunal did not dismiss the possibility of detention pursuant to those laws but because the Tribunal found that the laws were laws of general application which would be applied in a non discriminatory way, it cannot be said that the “essential and significant reason”[48] for the enforcement of the relevant laws would be a Convention reason. In my opinion, therefore this case is relevantly indistinguishable from that of SZSXY v Minister for Immigration[49]. The Federal Court has reached the same conclusion several times since that decision[50].
[46] CB 229:[38]
[47] 234:[59]
[48] see.91R(1)(a)
[49] [2014] FCA 1183 at [22]. I note that the applicant in that case has sought special leave to appeal to the High Court. cf MZZUO v Minister for Immigration [2014] FCA 1267 at [14]-[15]
[50] See SZTBW v Minister for Immigration [2014] FCA 1277 at [20]
Conclusion
The applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore 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-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 January 2015
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