SZTIV v Minister for Immigration
[2014] FCCA 1674
•17 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTIV v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1674 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka – applicant disbelieved in part and otherwise her fears were not well-founded – whether the Tribunal constructively failed to consider elements of the applicant’s claims and complied with its statutory obligations considered – discussion of the restraints on disclosure of applicant’s personal information to foreign officials. |
| Legislation: Migration Act 1958 (Cth), ss.5, 415, 424A, 499, 336, 336A, 336E, 336F |
| Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Minister for Immigration v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 NAVK v Minister for Immigration [2004] FCA 1695 SZBYR v Minister for Immigration (2007) 81 ALJR 1190 |
| Applicant: | SZTIV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2411 of 2013 |
| Judgment of: | Judge Driver |
| Hearing dates: | 29 July, 4 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2014 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 8 October 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2411 of 2013
| SZTIV |
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 13 September 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Sri Lanka and claimed protection in Australia on various bases. The following statement of background facts concerning her visa application and the decision of the Tribunal on it is derived from the submissions of the parties.
The applicant was born in Jaffna in Sri Lanka. She is of Tamil ethnicity and adheres to the Hindu religion. She was married in Jaffna in 1975 and has three children. She lived in Jaffna until 2004 and then moved to Dehiwa near Colombo where she lived until 2009. She moved again to another location near Colombo where she lived until her departure from Sir Lanka in 2011. One of her daughters lives in Australia. Her son lives in the United Kingdom and her other daughter also lives in the United Kingdom.
The applicant is a Sri Lankan national who entered Australia on 1 September 2011 on a tourist visa, which had been granted to her on 26 July 2011[1].
[1] Court Book (CB) 3
On 11 October 2011, the applicant applied for a protection visa[2]. Her application included a signed statement in which she set out her claims for protection[3]. In that statement, the applicant made a generic claim to fear persecution on the basis of her race, religion, nationality, membership of a particular social group and political opinion, but said that her submissions in respect of these grounds were “for the most part … indistinguishable from each other”[4].
[2] CB 1-91
[3] CB 44-56
[4] CB 50
The applicant’s statement focused on difficulties that she and members of her family allegedly experienced at the hands of the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE). She said that she and her family were suspected of having an involvement with the LTTE. In 1995, the SLA captured the area in which the applicant lived and took over her family’s land[5]. As a result of this, the applicant had to move with her family to Vanni[6]. There the applicant feared being abducted by the LTTE, so she returned to Jaffna with her family. In Jaffna, the LTTE regularly visited the applicant’s home and asked for her son in an effort to recruit him[7]. Consequently, the applicant’s son left Jaffna with her cousin. While travelling through Vanni, the applicant’s son was shot through his hand by the SLA on suspicion that he was an LTTE supporter[8]. He was arrested by the police, detained, and then released after the applicant’s husband bribed the police[9]. In 2000, he went to Italy and has lived overseas since that time.
[5] CB 51
[6] CB 51
[7] CB 51
[8] CB 51-52
[9] CB 52
In 2004, the applicant moved to Colombo. One day, the Karuna (a paramilitary group) and the Eelam People’s Democratic Party (EPDP) came to the applicant’s home and questioned her as to the location of her son and her cousin[10]. They also demanded that she pay 20,000 rupees to them or face arrest by the police. She claimed that she paid this amount one week later[11].
[10] CB 52
[11] CB 52
In 2010, the applicant travelled to Singapore to register the marriage of her daughter, who had left Sri Lanka two years earlier[12]. On her return to Sri Lanka, the applicant was questioned at the airport “by the authorities through the Tamil paramilitaries”[13]. She left Sri Lanka in September 2010 to attend her daughter’s “customary wedding” in the United Kingdom, and stayed there for six months. She then returned to Sri Lanka and was, again, questioned at the airport. She claimed that, on this occasion, she was taken into another room with other Tamil women and questioned as to why she visited the United Kingdom and the nature and extent of her children and other relatives’ involvement with the LTTE[14]. She further claimed that she was taken to a police station, questioned, assaulted, and faced extortion, by the paramilitaries[15]. The applicant paid money to the paramilitaries at the time that she applied for a visa to travel to Australia[16]. Upon arriving in Australia, the applicant was informed by her husband that the paramilitaries had asked him about her whereabouts[17] and told him that, if she returned, they would have her sent to prison for “deceiving them”[18].
[12] CB 53
[13] CB 53
[14] CB 53
[15] CB 53-54
[16] CB 54
[17] CB 54-55
[18] CB 55
The applicant feared that, if she were returned to Sri Lanka, she would be interrogated by the police and imprisoned for being an “LTTE accomplice”, which the applicant claimed she was not[19].
[19] CB 55
A delegate of the Minister made a decision, on 5 September 2012, to refuse to grant a protection visa to the applicant[20]. The delegate found that the applicant was not a person to whom Australia owed protection obligations.
[20] CB 96-110
Merits review
On 26 September 2012, the applicant applied to the Tribunal for review of the delegate’s decision[21].
[21] CB 111-116
On 15 January 2013, the Tribunal invited the applicant to attend a hearing on 14 March 2013 to present evidence and arguments in support of her application[22].
[22] CB 127
The applicant provided written submissions to the Tribunal on 8 March 2013[23], at the hearing on 14 March 2013[24], and on 9 July 2013[25].
[23] CB 134
[24] CB 136-168
[25] CB 181
At the hearing before the Tribunal, the applicant advanced a new claim, namely, that, upon her arrival in Sri Lanka after her trip to the United Kingdom, the paramilitaries demanded that she pay to them 25 lakhs[26]. The applicant said that she paid this amount in two instalments: 10 lakhs one week after her release and the balance in July or August 2011.
[26] CB 192 [51]
On 13 September 2013, the Tribunal made a decision to affirm the delegate’s decision[27]. The Tribunal’s findings and reasons are discussed below in the context of addressing the applicant’s grounds of review.
[27] CB 183-197
The judicial review application
The applicant relies upon her judicial review application filed on 8 October 2013. There are five grounds in that application:
1. The Tribunal failed to consider relevant considerations, failed to ask relevant questions and failed to engage in constructive inquisitorial inquiry.
Particulars
In my submission to the Tribunal, I mentioned that I fear harm due to my religious background as a person belong to the Hindu minority religious group in Sri Lanka. The Tribunal failed to consider and assess my claim under the religious ground either under the Refugee Convention or under the Complementary Protection ground. Further, the Tribunal failed to ask questions related to religious persecution from me.
2. The Tribunal failed to assess my claims under s.36(2)(a).
Particulars
Though, I have mentioned in my written submission that I fear I will face serious harm under the following particular social groups, the Tribunal in its finding and reasons from paragraphs 59-75 failed to assess under the particular social groups, I advanced.
a. Elderly Tamil woman whose children in a western country.
b. Mother of children who have participated or perceived as participated in anti-Rajapakse government.
c. Tamil women perceived as participated in anti-Rejapake protests.
3. The Tribunal failed to assess my claim according to law.
Particulars
a. The Tribunal failed to assess my claim that that after the introduction of the Ministerial Direction IMMI 13/048 entitled, “Disclosure of Information to Prescribed Bodies” dated 11 June 2013, my personal details would have been passed to the Sri Lankan Police, therefore I fear serious harm in Sri Lanka, if I returned. The Tribunal failed to adequately assess my claims under this ground and failed to assess my fear due to the application of the new Ministerial Direction.
4. The Tribunal failed to assess my claim according to law.
Particulars
The Tribunal in paragraph 75 assessed my claim under the Refugee Convention ground of race (Tamil), and imputed political opinion ‘under the Refugee Convention criterion of ‘Serious harm’. It failed to assess the claim under the complementary protection ground of ‘significant harm’.
The Tribunal mentioned that it did not satisfy that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). The Tribunal assessed my claims and provided reasons under the ‘serious harm’ ground of Refugee Convention but failed to provide reasons it did not satisfy I am not a person in respect of whom Australia has protection obligations under the complementary protection criteria of ‘significant harm’. Particularly, the Tribunal failed to address my fear of harm under the following particular social groups under the complementary protection ground criteria of ‘significant harm’.
b. Elderly Tamil woman whose children in a western country.
c. Mother of children who have participated or perceived as participated in anti-Rajapakse government.
d. Tamil women perceived as participated in anti-Rajapake protests.
e. My fear that my details may have been shared with the Sri Lankan authorities due to the existence of Ministerial direction IMMI 13/048 entitled, “Disclosure of Information to Prescribed Bodies” dated 11 June 2013.
f. My religious ground – Hinduism
5. The Tribunal failed to discuss or inform me certain country information it will rely on to affirm the decision.
Particulars
The Tribunal failed to advise me or inform me either at the time of the Tribunal hearing or later in writing or orally that it will rely on certain country information pursuant to the Ministerial Direction No 566 made under s.499 of the Migration Act. I was not informed about the Country information that the Tribunal intends to rely on for my case.
The application is supported by a short affidavit by the applicant which I received. In addition, I received as evidence the court book filed on 18 November 2013 and an affidavit by the applicant’s son-in-law made on 12 August 2014 concerning the transmission of certain documents to the Tribunal by facsimile. He was cross-examined on that affidavit. The applicant’s daughter living in Australia (the wife of the applicant’s son-in-law) gave oral evidence relating to the same matter. She was cross-examined on that evidence.
In addition to the court book, the Minister relies upon the affidavit of Bernadette Ruddy made on 26 August 2014 concerning the Tribunal’s system for the receipt of facsimile transmissions and the transmission received from the applicant’s son-in-law. Ms Ruddy was cross-examined on her affidavit. I also received the following exhibits:
·MFI A1 – Regulation 5.34D – Disclosure of Information to Prescribed Bodies;
·R1 – Affidavit of applicant’s son-in-law (facsimile copy).
The parties made both written and oral submissions.
Consideration
Ground 1 – did the Tribunal overlook a relevant consideration?
The applicant contends that she claimed to fear harm not just as a Tamil but also as a Hindu and that the Tribunal failed to deal with the claim based on her religion. I do not accept that such a claim was made.
At no stage during the visa application or merits review processes did the applicant articulate a claim for protection on the basis of her religious beliefs. Although the applicant listed, in her written submissions provided at the Tribunal hearing on 14 March 2013, “Religion: Hindu woman” as a basis upon which she feared serious harm[28], she did not elaborate on this claim anywhere in her submissions or evidence to the Tribunal. Merely to list a Refugees Convention ground, without more, is not sufficient to amount to “a substantial, clearly articulated argument relying upon established facts”[29].
[28] CB 136
[29] Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. See also NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at 19 [60] per Black CJ, French and Selway JJ
Further, the applicant did not put forward any evidence (such as country information) from which it could be said that the asserted claim for protection clearly arose[30].
[30] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at 19 [60] per Black CJ, French and Selway JJ; NAVK v Minister for Immigration [2004] FCA 1695 at [15] per Allsop J (as his Honour then was)
If I am wrong in that conclusion, then I would find that the claim was considered as part of more general considerations by the Tribunal. At [46] of its decision the Tribunal said[31]:
[31] CB 191
At the hearing, the applicant provided a lengthy written submission which comprises a review of “recent country information”, which is held on the Tribunal file and is not reproduced here. The submission commences with a statement by the applicant:
I fear that I will face serious harm for the following reasons:
Political opinion: Supporting Tamil nationalism and perceived as a sympathiser and supporter of the LTTE.
Race: Sri Lankan woman
Religion: Hindu woman.
Particular social groups:
a. Tamil women perceived as participated in anti-Rejapakse protests.
b. Elderly Tamil women whose children are in western countries.
c. Mother of children who have participated or perceived as participated in anti-Rajapakse government.
d. Failed asylum seekers.
The Tribunal then made findings at [72]-[73][32] that the applicant’s claim to fear persecution in Sri Lanka was “not genuine” and that the chance of her being harmed due to “any other reason” was “so remote as to be insubstantial and far fetched”. In my view, the findings, although general, are sufficient to amount to rejection of any claim based upon religion.
[32] CB 197
Ground 2 – did the Tribunal fail to deal with a particular social group claim?
Ground 2 asserts that the Tribunal failed to consider the applicant’s claims to fear persecution by reason of her membership of the following particular social groups:
a)elderly Tamil women whose children are in western countries;
b)mothers of children who have, or are perceived as having, participated in anti-Rajapakse protests; and
c)Tamil women who are perceived as having participated in anti-Rajapakse protests.
As to the first claim, the Tribunal’s finding at [71][33], that there was no evidence to support the applicant’s claim that, “as a person returning from an overseas stay with children who live overseas”, she would, for those reasons, be abducted for extortion by paramilitaries, was a rejection of her claim to fear harm on the basis of her membership of the first group identified above.
[33] CB 196-197
Moreover, the Tribunal’s rejection of the applicant’s claim to fear persecution on the basis of a political opinion imputed to her due to the activities of other members of her family[34] necessarily and inevitably denied the particular social group claim[35]. That is, the Tribunal rejected the factual premise upon which the applicant’s particular social group claim rested, which was that she would be harmed in the light of her children’s anti-government, or perceived anti-government, political activities[36].
[34] at CB 197 [73]
[35] Minister for Immigration v Yusuf (2001) 206 CLR 323 at 354 [95] per McHugh, Gummow and Hayne JJ
[36] Cf Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [47] per French, Sackville and Hely JJ
As to the second claim, the following findings amounted to a consideration and rejection of the second particular social group claim listed above:
a)the Tribunal did not accept that the applicant had faced extortion by paramilitary groups, let alone for 25 lakhs, in circumstances where her son had left Sri Lanka permanently in 2000[37]. (In this connection, it should be noted that the alleged extortion took place, on the applicant’s evidence, in part because “the paramilitary group knew of … her son’s wounding and brief detention, all of which occurred prior to her son going to Italy”[38];
b)the Tribunal did not accept that the Sri Lankan authorities, or paramilitary groups, would pursue the applicant for the amount in question such a long time after the events concerning her son[39];
c)the Tribunal did not accept that the applicant was of any interest to the Sri Lankan authorities as a suspected LTTE supporter or sympathiser[40]; and
d)there was no reason to suspect that the applicant would be of any interest to the Sri Lankan authorities on her return to Sri Lanka[41].
[37] CB 195-196 [66]
[38] CB 195 [66]
[39] CB 195-196 [66]
[40] CB 196 [71]
[41] CB 196 [71]
As to the third claim, the Tribunal’s findings at [66][42] were sufficient to reject this claim. There, the Tribunal did not accept that the applicant had faced extortion at the hands of paramilitary groups. A part of the reason for the alleged extortion, according to the applicant, was that there were photographs depicting her attendance at a demonstration in London against the then Sri Lankan president. The applicant herself said that she had not been shown any photographs by the Sri Lankan authorities or paramilitaries and had only attended the event as a spectator. The Tribunal found that it was “unlikely … that photographic evidence would exist to implicate the applicant in any overtly anti-government political activity”, where “the applicant d[id] not claim to hold any anti-government political opinion.”
[42] CB 195
I also note the Tribunal’s findings at [72]-[73][43], that the applicant’s claim to fear persecution in Sri Lanka was “not genuine”[44] and that the chance of her being harmed in Sri Lanka “for any other reason” was so remote as to be insubstantial and far-fetched. Read together, these findings pertained to all of the applicant’s claims not mentioned expressly at [73][45].
Ground 3 – did the Tribunal overlook a sur place claim?
[43] CB 197
[44] CB 197 [72]
[45] CB 197
In this ground, the applicant contends that the Tribunal “failed to assess [her] claim according to law.” In the particulars to this ground, the applicant says that the Tribunal did not assess her claim that, after the introduction of Legislative Instrument IMMI 13/048[46], her “personal details would have been passed to the Sri Lankan Police” and that, therefore, she feared serious harm in Sri Lanka.
[46] See annexure B to the applicant’s affidavit affirmed on 8 October 2013
The claim is based upon the following factual assertion:
On 09 July 2013, I sent my further statement via fax attaching an evidence of the Ministerial Direction IMMI 13/048 entitled “Disclosure of Information to Prescribed Bodies” dated 11 June 2013. I also have mentioned in my statement I fear due to the introduction of this Instrument, I have a genuine concern that my details also could have been passed to the Sri Lankan police. I have highlighted in the attachment that Sri Lanka Police is one of the prescribed body. My daughter called the Tribunal and confirmed with the tribunal that they received the fax. However, the Member mentioned in her decision that she did not see the evidence. On the other hand, we sent it via fax and confirmed with the Tribunal on 09 July 2013. In the Court book, there is no record of either attachment or a file note of the Tribunal officer that my daughter called and confirm with the Tribunal. Further, I have in my statement clearly mentioned that I heard the news about sharing the information with the Sri Lanka Police and the Tribunal either could have checked the Ministerial Direction in this regard or under [s.424A] could have sent a letter asking an explanation in this regard. By failure to undertake its obligation, I submit that the Tribunal has clearly fallen into jurisdictional error.
The applicant’s daughter gave evidence that, on behalf of her mother, she asked her husband to fax various documents to the Tribunal at various times, including the submission which is reproduced at CB 181. She gave evidence that that facsimile transmission on 9 July 2013 included the Ministerial direction referred to by the applicant above. I marked for identification[47] a copy of that instrument tendered by the applicant.
[47] MFI A1
Under cross-examination, the applicant’s daughter conceded that she was not present when her husband faxed the documents to the Tribunal. Her knowledge of what occurred is based on what her husband told her he had done. Because of that, I adjourned the hearing so that the applicant’s son-in-law could give evidence by way of affidavit.
The applicant’s son-in-law’s affidavit was not in proper form in that the operative part was a statutory declaration. However, in the witness box he adopted the truth of that statement. The Minister tendered, during the course of cross-examination, the records of the facsimile transmission relied upon by the applicant.
The evidence of the son-in-law was not persuasive evidence that the instrument was sent by the applicant to the Tribunal. He has no precise recollection of what occurred. The transmission records derived from his employer are inconclusive. The court book at page 181 discloses from the transmission lines at the top and bottom of the document reproduced on that page that it was only the submission (without the copy of the instrument) that was sent to the Tribunal by facsimile.
This conclusion was reinforced by the evidence of Bernadette Ruddy, who is the Director of Technology Services at the Tribunal. Her evidence, which was unshaken in cross-examination, is that the Tribunal records of facsimile transmissions on 9 July 2013 only disclose the transmission of a single page (namely the submission) on 9 July, albeit that it appears that that page was sent twice.
I find that the applicant’s submission sent on 9 July 2013 raises a sur place claim but the Ministerial instrument in issue was not put by the applicant to the Tribunal as part of that claim.
In any event, the Tribunal did not need to deal with the instrument for the purposes of dealing with the sur place claim.
Legislative Instrument IMMI 13/048 was made on 11 June 2013 pursuant to regulation 5.34D of the Migration Regulations 1994 (Cth) (Regulations) and commenced on 1 July 2013. It specifies, for the purposes of s.336F(1)(d) of the Migration Act 1958 (Cth) (Migration Act), certain bodies as prescribed bodies. One of those bodies is the “Sri Lanka Police Service” (SL Police).
Section 336E of the Migration Act makes it an offence for a person to cause, by their conduct, disclosure of “identifying information” (as defined in s.336A), provided that the disclosure is not a “permitted disclosure” within the meaning of ss.336E(2) and (3). Relevantly, a permitted disclosure is a disclosure that is authorised under s.336F and is for the purpose, or one or more of the purposes, for which the disclosure is authorised[48].
[48] Section 336E(2)(c)
Subsection 336F(1) permits the Secretary of the Minister’s Department (Secretary) to authorise, in writing, a specified officer or any officer included in a specified class of officers, to disclose identifying information of the kind specified in the authorisation to, relevantly:
a)one or more specified bodies each of which is a police force or police service of a foreign country[49]; or
b)one or more prescribed bodies of a foreign country[50].
[49] Section 336F(1)(b)(i)
[50] Section 336F(1)(d)
However, by reason of s.336F(3), a disclose is taken not to be authorised under s.336 if, relevantly:
a)the person to whom the identifying information relates is an applicant for a protection visa[51]; and
b)the disclosure is to a foreign country in respect of which the application or claim is made, or a body of such a country[52].
[51] Section 336F(3)(a)(i)
[52] Section 336F(3)(b)
Subsection 336F(3) had the effect of prohibiting disclosure of the applicant’s identifying information to the SL Police, including while her application to the Tribunal was on foot.
There are two relevant exceptions to the prohibition in s.336F(3). First, it will not apply where the person to whom the identifying information relates has requested or agreed to return to the foreign country in respect of which they made their application[53]. Secondly, it will not apply where an applicant for a protection visa has had their application refused and finally determined[54]. Importantly, nothing in s.336F(5) permits the Secretary to disclose a protection visa applicant’s identifying information while their application is not finally determined (within the meaning of the then s.5(9) of the Migration Act).
[53] Section 336F(5)(a)
[54] Section 336F(5)(b)
The applicant’s claim as set out in her further, undated submissions at CB 181 was as follows:
Since I heard the news that the Department of Immigration and Citizenship has decided to share information with the Sri Lankan police from 1 July 2013, I fear that my personal details also may have been given to the Sri Lankan authorities. The Sri Lankan authorities perceive people who apply for asylum in Australia as LTTE sympathisers. Therefore, I fear if I returned to Sri Lanka, I will be harmed because I fear that the Sri Lankan police by now may have got my information regarding my protection visa. [Emphasis added]
Thus, the applicant feared that, in the light of the making of Legislative Instrument IMMI 13/048, the Minister’s Department had the power, from that time, to give information regarding her protection visa application to the SL Police. The applicant’s claim for protection clearly was based on the SL Police possibly having that information already. That is the only way in which the applicant’s claim can be read (and could be relevant). The basis of the applicant’s fear of harm could not have been that her personal details could be given to the SL Police after her visa application was refused and finally determined, as she would not be a person to whom Australia owes protection obligations. Nor could the applicant have feared that the instrument permitted an authorised officer to give the information to the SL Police if the Tribunal set aside the primary decision under s.415(2) and substituted for it a decision to grant a protection visa to her, as that would be contrary to s.336F(3) (and, in any event, the applicant would not be forcibly returned to Sri Lanka).
The question for the Court, therefore, is whether Legislative Instrument IMMI 13/048 permitted a person authorised by the Secretary to provide identifying information concerning the applicant to the SL Police prior to the Tribunal making a decision on the review. The Minister submits that that question should be answered in the negative. Indeed, it may be said that the instrument had no effect at all on the applicant’s circumstances, given the already existing power in s.336F(1)(b)(i), which contemplated permitted disclosures to police services of foreign countries.
On the basis of the Minister’s construction of s.336F and interpretation of the applicant’s claim, which I accept, it must follow that the Tribunal did not misinterpret the applicant’s claim at [71][55].
[55] CB 196
The Tribunal was correct when it found that there “is no reason to expect that the Sri Lankan authorities would become aware of [the applicant’s] unsuccessful protection visa application in Australia, despite the applicant’s claim to the contrary in her post-hearing submission.” That is so at least for the reason that, as discussed above, an authorised officer could not have disclosed identifying information about the applicant to the SL Police while the Tribunal was still considering her application (which the applicant feared had already occurred: see the final sentence of her submission extracted at [45] above). Further, the definition of “identifying information” in s.336A does not include information about a person’s visa application per se.
The Tribunal was also correct in finding that there was “[n]o evidence … that the Australia[n] government shares with the Sri Lankan government identifying information on persons applying [for] protection visas in Australia, which in any event is contrary to the provisions of the Migration Act”. [Emphasis added.] That finding is consistent with the Minister’s construction of s.336F, which I have accepted. In so far as Legislative Instrument IMMI 13/048 attempts to cut across the prohibition in s.336F(3) (which the Minister submits it does not), it would be invalid.
Moreover, the Tribunal found, at [71][56], that there was no reason to expect that the applicant would be of any interest to the Sri Lankan authorities on her return, and that there was no evidence to support her claimed fear of adverse attention for that reason.
[56] CB 196-197
Ground 4 – did the Tribunal err in considering the applicant’s claim for complementary protection?
Ground 4 asserts that the Tribunal did not assess, for the purposes of complementary protection, the applicant’s claims for protection on the basis of her race, religion, imputed political opinion, membership of particular social groups, and the making of Legislative Instrument IMMI 13/048.
In circumstances where:
a)all of the applicant’s claims for protection under the Refugees Convention were rejected;
b)the applicant’s claim to fear harm was found not to be genuine[57]; and
c)the applicant’s claims for complementary protection were no different from those under the Refugees Convention,
the Tribunal was entitled to rely, as it did at [75][58], upon its earlier findings for the purpose of rejecting her complementary protection claims[59].
[57] CB 197 [72]
[58] CB 197
[59] SZSHK v Minister for Immigration (2013) 138 ALD 26 at 34 [32] per Robertson, Griffiths and Perry JJ; SZSGA v Minister for Immigration [2013] FCA 774 at [53]-[56] per Robertson J
As to particular (f) to this ground, the Tribunal was not required to consider a claim for protection on the basis of the applicant’s religious beliefs, for the reasons given at [20]-[21] above. Further, even if the claim was raised, it was considered and rejected, as discussed at [22]-[23] above. In those circumstances, the principles enunciated in SZSHK and SZSGA would be applicable.
Ground 5 – did the Tribunal err in failing to discuss country information with the applicant?
In this ground, the applicant asserts that the Tribunal failed to inform her that it would rely on certain country information “pursuant to the Ministerial Direction No 566 [sic 56] made under s.499 of the … Act.”
This ground is misconceived. Ministerial Direction No 56[60] required the Tribunal to take into account departmental policy guidelines regarding refugee law and complementary protection to the extent that they were relevant to the review. By reason of s.424A(3)(a), this material did not have to be put to the applicant for comment in accordance with s.424A(1).
[60] which the Tribunal noted at CB 186 [20]
In any event, the guidelines do not, themselves, comprise “the reason, or a part of the reason, for affirming the [delegate’s] decision” and, therefore, fall outside the scope of s.424A(1). Departmental policy does not, in its terms, contain “a rejection, denial or undermining of [an applicant’s] claims”[61].
[61] SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at 1196 [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. See also Minister for Immigration v SZLFX (2009) 238 CLR 507 at 513 [22] per French CJ, Heydon, Crennan, Kiefel and Bell JJ
In the final sentence of the particulars to this ground, the applicant contends that she “was not informed about the [c]ountry information that the Tribunal intends to rely on for [her] case.” The Tribunal’s notification obligations in s.424A(1), however, do not apply in respect of country information[62].
[62] Section 424A(3)(a)
Conclusion
The applicant has failed to demonstrate any jurisdictional error in the decision of the Tribunal. 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 sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 October 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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