SZTKE v Minister for Immigration
[2015] FCCA 103
•13 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTKE v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 103 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka on account of his race, an implied political opinion and as a failed asylum seeker – applicant not believed – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth), made findings unsupported by evidence, asked itself the wrong question, misunderstood the relevant law or otherwise fell into jurisdictional error considered. |
| Legislation: Migration Act 1958 (Cth), ss.5,36,91R,422B,425 |
| Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Dranichnokov v Minister for Immigration (2003) 197 ALR 389; [2003] HCA 26 MZZUO v Minister for Immigration [2014] FCA 1267 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZMFJ v Minister for Immigration (No.2) [2009] FCA 95 SZWAU v Minister for Immigration [2015] HCA Trans 2 WAEE v Minister for Immigration [2003] FCAFC 184 WZAPN v Minister for Immigration [2014] FCA 947 |
| Applicant: | SZTKE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2507 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 October 2014 |
| Date of Last Submission: | 3 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr B O'Donnell |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as further amended on 17 February 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2507 of 2013
| SZTKE |
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) made on 20 September 2013. The applicant is a citizen of Sri Lanka and had made claims of persecution based on his Tamil race and imputed links with the Liberation Tigers of Tamil Eelam (LTTE). The applicant has also made a claim of being a member of a particular social group of returning failed asylum seekers. The following background facts are derived from the submissions of the parties.
The applicant arrived in Australia at Christmas Island by boat on 20 June 2012[1]. On 12 November 2012 the applicant applied to the Minister’s department for a protection visa[2] and submitted a Statutory Declaration setting out his claims of persecution[3].
[1] Court Book (CB) 51
[2] CB 36-99
[3] CB 64-67
On 23 January 2013 the Minister’s delegate refused the application[4]. On 19 February 2013 the applicant applied to the Tribunal for review of the delegate’s decision[5]. On 12 March 2013 the Tribunal wrote to the applicant inviting him to appear before the Tribunal to give evidence and present arguments relating to the decision under review[6]. The applicant accepted the invitation and also submitted written submissions through his lawyers[7]. The applicant attended the hearing on 17 April 2014 accompanied by his migration agent[8]. On 20 September 2013 the Tribunal decided to affirm the delegate’s decision to refuse the protection visa[9].
[4] CB 106-107
[5] CB 129-134
[6] CB 138-140
[7] CB 144-179
[8] CB 180-181
[9] CB 197-216
Applicant’s claims
The applicant stated in his statutory declaration that:
a)he was injured in April 2009 from a shelling attack and was detained at a camp in May 2009 by the Sri Lankan Army (SLA) and his family paid a bribe to secure his release;
b)while he was at the camp he was interrogated and assaulted by officials at the camp because they wanted to know whether he had any links with the LTTE. He also claimed that he was told by camp officials to avoid being seen because he did not have formal documents to show that he had been formally released from the camp;
c)in September 2009 people from his neighbourhood and surrounding areas were taken away by the SLA and Criminal Investigation Division (CID). After this he made arrangements to travel to India where he remained until May 2010;
d)in May 2010 three plain clothed men attended his brother’s shop and made inquiries about him. The applicant stopped working for his brother because he was fearful that the police would return;
e)in April 2012 people who had been released from the camp were being detained by the authorities, including a friend who he has not seen again. He feared for his safety and made arrangements to leave Sri Lanka in June 2012.
The Tribunal’s decision
The Tribunal accepted that the applicant was a young Tamil male from the Eastern province in Sri Lanka. The Tribunal also accepted that the applicant had been detained for a few months from May 2009 and then released. However the Tribunal had credibility concerns regarding other aspects of the applicant’s claims and deemed certain elements of his claims to be implausible. The Tribunal cited the following as elements of concern regarding the applicant’s credit:
a)the applicant claimed he paid a bribe to obtain a passport as he was on a flight “watch” list. However in his original application he had stated he had no difficulty in obtaining his passport;
b)the exact nature of the applicant’s involvement with the LTTE. The applicant initially claimed to have no involvement with the LTTE and then at hearing claimed that he had undergone compulsory training with them. He also later claimed that both his father and his cousin had LTTE involvement;
c)the applicant claimed initially in his statutory declaration that many people who were released from the camp previously were being taken by the authorities around April 2012. However when the applicant was questioned about this by the delegate, he said no one had come looking for him at this time.
The Tribunal also found it implausible that despite the CID actively searching for the applicant after his release from detention in July 2009 he was able to avoid being arrested. The Tribunal did not accept that the applicant would have worked at his brother’s shop and hidden in the back photocopy room every time the CID came and inquired about him. Nor did the Tribunal find plausible that if the CID had come to the hospital where the applicant said he was staying after being released from the camp they would not have arrested him. The Tribunal concluded this claim had been fabricated.
The Tribunal also questioned the evidence given by the applicant concerning his work dates, particularly for how long he worked for his brother in the shop and for an electrician.
The Tribunal member concluded[10]:
[10] CB 212
I have carefully considered how these matters impact on the overall credibility of the applicant. If they were minor I would be prepared to give him the benefit of the doubt. In this instance however they go to the core claims made. I do not accept that he was on any watch list. I do not accept he obtained his passport through a bribe. I do not accept that he had any difficulty departing from or entering Sri Lanka. I find he has made these claims so as to enhance his apparent profile of being of adverse interest to the authorities and so as to enhance his claims for a protection visa.
Overall, I find that the applicant is not a credible witness.
The Tribunal also rejected the applicant’s claim based on his asserted membership of the particular social group of “returning failed asylum seekers”. The Tribunal accepted that the applicant would be questioned on return, probably detained at Negombo Prison for a few days, and fined for his illegal departure from Sri Lanka. The Tribunal found that such temporary detention did not constitute serious harm amounting to persecution for the purposes of s.91R(1)(b) of the Migration Act 1958 (Cth) (Migration Act) (or significant harm as defined in ss.36(2A) and 5(1) of that Act) and that the feared harm would not be for a Refugees Convention reason because it would be a consequence of the non discriminatory application of a law of general application. Further, the Tribunal did not accept that the claimed particular social group of failed asylum seekers exists in Sri Lanka as it is defined by the feared harm.
The judicial review application
These proceedings began with an application filed on 16 October 2013. An amended application was filed on 16 January 2014. The applicant relied on a further amended application filed on 17 February 2014. That further amended application raised the following grounds:
1. The Tribunal engaged in jurisdictional error by failing to comply with its obligations under s.425 of the Act.
Particulars
a. The Tribunal rejected the applicant’s credibility by virtue of the matters set out at CB210[46]-[52]. These matters were not matters that the delegate considered dispositive to the review, yet the Tribunal failed to take steps to identify all of these matters and provide the applicant with an opportunity to give evidence and present arguments in relation to the same.
b. Further and in the alternative, the Delegate accepted the credibility of the applicant’s account concerning his detention in a detention centre (including his account of being released by virtue of a payment of a bribe) (CB114) and his account of obtaining his passport and departing the country through the payment of a bribe (CB115). The Tribunal, however, rejected the plausibility of the applicant’s account in these respects without informing the applicant that it doubts these aspects of his account and providing him with an opportunity to give evidence and present arguments in relation to the same.
2. The Tribunal engaged in jurisdictional error by making a finding in the absence of evidence or by misconstruing the applicant’s claims when it found that the applicant “clearly states he had no difficulty in obtaining his passport” (CB210.7).
Particulars
a. There was no evidence before the Tribunal upon which it could have held that the applicant “clearly states he had no difficulty in obtaining his passport” in his original application. Words to this effect are not found in anything constituting an original application and the evidence before the Tribunal was to the effect that the initial Irregular Maritime Arrival Entry Interview (Entry Interview) was “suspended as client could not communicate effectively via interpreter” (CB14).
b. The applicant claimed in his Entry Interview that “my family paid money to get us out of the camp and then we went to India, we had to pay for our passport [as] well” (CB26). A fair reading of this is that the applicant claimed to pay a bribe to obtain his passport and it does not support the finding that the applicant “clearly states he had no difficulty in obtaining his passport”.
3. The Tribunal engaged in jurisdictional error by asking itself the wrong question or by failing to address the applicant’s claims.
Particulars
a. The applicant claimed that factors personal to him that increased the risk of him being imputed with LTTE cadre profile in the future included his scarring (CB154). The Tribunal did not address this claim but, rather, asked itself an irrelevant question (being whether the Sri Lankan authorities knew that he had a scar when they released him in 2009).
b. Further and in the alternative, the applicant claimed that he feared persecution by paramilitary groups and the material put before the Tribunal by the applicant was to the effect inter alia (CB156) that paramilitary groups were: (a) involved in assisting government military forces in the assault and murder of civilians; (b) impeding the movement of residents, especially Tamils; (c) assisting government authorities in detaining and torturing individuals alleged to have LTTE connections, (d) frequently harassing Tamil me, and (e) practicing illegal seizure of private land extortion with impunity. The Tribunal did not deal with this claim and its integers but rather, limited its consideration of the applicant’s claims to a consideration of feared persecution at the hands of Sri Lankan authorities only;
d. Further and in the alternative, the applicant claimed that there was a practice of arbitrarily detaining and seriously mistreating individuals in detention, particularly during the interrogation process. The Tribunal found that the Applicant would be questioned, but failed to ask whether there was a real chance that the questioning process would involve persecution or significant harm.
4. The Tribunal engaged in jurisdictional error by making a critical finding in the absence of evidence, by failing to take into account a relevant consideration, by asking itself the wrong question or by failing to apply the correct test.
Particulars
a. The Tribunal concluded at [60] and [70] that the applicant would be arrested and held on reman for a few days while awaiting a court appearance and that he would be fined between 50,000 and 100,000 rupees. This finding was based solely upon a statement made by a Sri Lankan lawyer recorded in a Sydney Morning Herald article dated 8 December 2012 concerning the fate of certain returnees from Australia returned in late November 2012 as to the ‘likely’ outcome of the proceedings.
b. In this regard, the Tribunal failed to ask itself the correct question because it was obligated to ask itself whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future upon his return to Sri Lanka. Instead of asking this question, the Tribunal considered what the likely outcome of the applicant’s court proceedings would be based on practice prevalent in late November 2012.
c. Further and in the alternative, the Tribunal’s finding was made in the absence of evidence because the article relied upon by it was only capable of going to the likely penalty to be given to the November 2012 returnees referred to in the article rather than the penalty to which the applicant had a real chance of being exposed to in the reasonably foreseeable future.
d. Further and in the alternative, the Tribunal’s finding failed to take into account relevant considerations, being:
i. DFAT’s report to the effect that from late November 2012, all returnees from Australia were charged and remanded for offences regarding their illegal departure and that Sri Lankan authorities were focused on enforcing Sri Lankan law (CB207/208); and
ii. paragraph 45(1)(b) of the Sri Lankan Immigrants and Emigrants Act, which provided inter alia that there was a mandatory imprisonment period of at last 1 year and not more than 5 years for illegally departing Sri Lanka.
e. Further and in the alternative, the Tribunal failed to carry out its statutory obligation by failing to resolve the contradictory material before it (which it apparently accepted uncritically) going to the question of the penalty that would likely be imposed.
5. The Tribunal engaged in jurisdictional error by misunderstanding the applicable law and, as a consequence, constructively failing to exercise its jurisdiction.
Particulars
The Tribunal made an error of law by finding that “failed asylum seekers’ was a group that was incapable of constituting a particular social group of Convention purposes. As a consequence, the Tribunal misconstrued or constructively failed to deal with this claim.
6. The Tribunal engaged in jurisdictional error by failing to ask itself the right questions when addressing (at [61]) whether Sri Lankan law concerning illegal departure was a law of general application and whether, as such, prosecution pursuant to it could not attract protection under the Refugees Convention.
I have before me as evidence the book of relevant documents (court book) filed on 26 November 2013 and the affidavit of Jenny Falconer filed on 23 January 2014 to which is annexed a transcript of the hearing before the Tribunal.
The parties made both oral and written submissions, including post trial submissions concerning the impact of the Federal Court decision in WZAPN v Minister for Immigration[11].
Consideration
[11] [2014] FCA 947
Ground 1 – did the Tribunal breach s 425 of the Migration Act?
The applicant claims that there is a discrepancy between the way the delegate and the Tribunal member assessed his claims. The applicant claims that the delegate did not doubt certain claims made by the applicant in relation to:
a)his detention and subsequent release through the payment of a bribe;
b)his procurement of a passport by payment of a bribe, and
c)his departure from Sri Lanka which included payment of a bribe by an agent following the applicant being questioned by the CID.
The delegate assessed these aspects of the applicant’s claims as credible and consistent with country information.
The Tribunal, however, found that the above claims from the applicant were untrue. The applicant claims that the Tribunal has not fulfilled its obligations in accordance with s.425 of the Migration Act and as explained in SZBEL v Minister for Immigration[12].
[12] (2006) 228 CLR 152
Section 425 imports non statutory principles of procedural fairness into the Tribunal’s code of procedure for the purpose of a Tribunal hearing. The section requires the Tribunal to invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The High Court stated in SZBEL at [35]:
The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that 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”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
Thus in determining whether a difference between the delegate’s reasoning and that of the Tribunal is sufficient to engage an obligation of disclosure, the question is whether the applicant could have reasonably been misled into thinking that his claims had been accepted on a given issue by the Tribunal.
The authority of the decision in SZBEL is unaffected by the enactment of s.422B of the Migration Act. While the seminal principle referred to by the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[13] is a general law principle, the High Court in SZBEL was interpreting s.425 of the Migration Act, not simply applying the general law principle.
[13] (1994) 49 FCR 576 at [28]
The applicant outlined three occasions (as set out at [13] above) where he believed there was a difference in reasoning and acceptance of his claims between the delegate and the Tribunal. The Minister submits that, although it is true that the Tribunal came to different conclusions about these three claims, the Tribunal put questions to the applicant that sufficiently demonstrated that the issue was being assessed by the Tribunal. I agree. On my reading of the Tribunal hearing transcript each of the claims outlined above were identified and explored by the Tribunal member. In relation to procuring a passport the Tribunal questioned the applicant as follows[14]:
So what you’re saying … what you want me to believe is that you approached the passport office, it’s on their computer that you’re actually … you’d been detained at the [detention] camp. They threatened to inform the CID, you walk out and then later on your agent, notwithstanding that, is able to get a passport for you?
(emphasis added)
[14] Transcript (T) 16.8
In relation to the applicant’s account of obtaining passage through the airport, including payment of a bribe the Tribunal member stated[15]:
But what you want me to believe is that you’re on some sort of alert list such that the airport office knew of you, and they knew without anyone telling them, that you’d actually been detained at [the] detention centre and had somehow got out? That’s what you want me to believe?
(emphasis added)
[15] T 22.4
Finally in relation to the last claim relied upon by the applicant of paying a bribe to secure his informal release from the detention camp the Minister points out that this finding was made only after, and as a consequence of, the Tribunal’s finding that the applicant was not a credible witness[16]. The Minister also contends that it was implicit in the tenor of the Tribunal’s questions that the Tribunal member was sceptical that the authorities were looking for the applicant[17]. The Minister further contends that it was put to the applicant that the Tribunal thought he was interlacing his story with lies and in this context the applicant could not have been misled into thinking that the claimed unofficial and corrupt nature of his release and his consequent presence on a “watch list”, were not live issues before the Tribunal[18]. I agree. The Minister also points out that the applicant was assisted by a Migration agent at the Tribunal hearing who was given ample opportunity to make submissions and suggest questions.
[16] See [49] and [50] CB 212
[17] See T 22.11, T 23.12-14 and T 24.5
[18] T 24.5
Ground 1 fails.
Ground 2 – did the Tribunal make a finding unsupported by evidence?
I accept the Minister’s submissions in relation to this ground.
Ground 2 points to the Tribunal’s finding at [46][19] that “[i]n his original application [the applicant] clearly states that he had no difficulty in obtaining his passport”. The ground claims there was no evidence to support this finding.
[19] CB 210; first dot-point
Contrary to particular (a) of ground 2 and [32(c)] of the applicant’s submissions, it is clear from the protection visa application that the applicant claimed to have no difficulty in obtaining his passport. Question 53 of the application form asked[20]: “Did you have difficulties obtaining a travel document (such as a passport) in your home country?” The applicant or his representative ticked the box marked “No”.
[20] CB 59
The applicant now seeks to re-cast this ground as a misunderstanding by the Tribunal that the bribery claim was a recent invention. In my view, however, the Tribunal’s credibility conclusion turns on the inconsistency in the applicant’s claims, not the temporal question of when the claim changed.
I reject ground 2.
Ground 3 – did the Tribunal ask itself the wrong question or overlook part of the applicant’s claims?
I prefer the Minister’s submissions in respect of this ground, because I do not accept that the particulars of the ground have been established.
Particular (a) – personal factors said to increase risk
The applicant bore shrapnel scaring from being a bystander during a clash between the LTTE and the SLA[21]. He claimed that these scars would mark him out as a possible former LTTE fighter and cause the Sri Lanka authorities and associated paramilitaries to persecute him. At [63] the Tribunal stated[22]:
Whilst I accept he has a scar from the shrapnel wound I consider the authorities would have been aware of that when they released him in 2009.
[21] CB 205 [31]
[22] CB 214
The applicant claims that this sentence fails to address the question of whether he would face a real risk in the future of being persecuted by the authorities or associated paramilitaries due to imputed LTTE associations[23].
[23] applicant’s submissions at [38]
The applicant’s submissions take the Tribunal’s sentence out of its wider context, in which the Tribunal had already found that the applicant had been officially released from detention in 2009 as not being of interest to the authorities for any LTTE connections[24]; and that the situation for young Tamil men had significantly improved since that time[25]. Read in this context, the impugned sentence clearly implies the reasoning that, if the scars had not led to adverse attention when the applicant had been detained in 2009, there was no real risk they would cause him trouble were he to return to Sri Lanka now. This clearly indicates that the scaring was considered and the particular should be dismissed for this reason.
[24] CB 212 [50]
[25] CB 213 [55]
Particular (b) – fear of paramilitary groups
The applicant alleges that the Tribunal focused on the applicant’s claim to fear persecution from the government and did not address his claims to fear persecution at the hands of paramilitary groups who have been assisting the government[26].
[26] applicant’s submissions at [39]-[41]
However, as French, Sackville and Hely JJ wrote in WAEE v Minister for Immigration [2003] FCAFC 184 at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
The Tribunal was clearly aware of the applicant’s claim to fear persecution from “the Sri Lankan Army, CID and paramilitary groups”[27]. It explicitly found that he was not of interest to the SLA or the CID[28]. It further considered the general position of young Tamil males in modern Sri Lanka and concluded that the applicant did not face a real risk of persecution from general sources[29]. Given that the paramilitaries referred to in the applicant’s claims were organisations acting in sympathy with the aims of the authorities, and that the applicant’s claims were primarily focussed on his experiences at the hands of the SLA and the CID, the question of any threat from paramilitaries was therefore “subsumed in findings of greater generality”. Moreover, the claim rested on the factual premise that the applicant would have an imputed LTTE profile, a premise which was rejected by the Tribunal.
[27] CB 203 [28]
[28] eg CB 212 [50]
[29] CB 213 [55]
Particular (d) – alleged use of torture in interrogation
The applicant alleges that, in considering what might happen to him on his return to Sri Lanka as a failed asylum seeker, the Tribunal failed to consider the possibility that he might be tortured by the authorities when they were interrogating him[30]. Country information regarding the use of torture on returning failed asylum seekers with suspected LTTE profiles was canvassed by the Tribunal in its reasons[31].
[30] applicant’s submissions at [42]
[31] see eg at [45] (CB 207)
However, the Tribunal found that the applicant did not have a LTTE profile sufficient to attract adverse official attention[32] and that any treatment he might suffer in being interrogated on his return to Sri Lanka would not amount to persecution for the purposes of the Migration Act[33]. It is clear that the torture claim was both based on “a factual premise … which has been rejected” (his LTTE profile) and “subsumed in findings of greater generality” (the nature of the treatment he was likely to suffer on his return)[34].
[32] CB 212 [50]
[33] CB 214 [62]
[34] see WAEE at [47] (quoted above)
Ground 3 fails.
Grounds 4-6 – did the Tribunal err in its consideration of the particular social group claim?
The applicant claimed to fear harm because of his membership of the particular social group of returning failed asylum seekers (who departed illegally). I accept that the Tribunal made one (and possibly two) errors in dealing with this claim.
First, at [62] of its reasons[35] the Tribunal stated:
I have also considered whether being questioned, detained for a few days and fined is the type of and seriousness of harm as could be considered as serious harm amounting to persecution as meant by section 91R(1)(b) of the Act. I find that it is not of such seriousness.
[35] CB 214
That statement, considered in isolation, cannot be reconciled with the recent decision of the Federal Court in WZAPN at [42]-[45]. As a statement of general principle the Tribunal’s statement at [62] must be taken to be wrong on the basis of that authority.
However, the Tribunal also found at [61] that there was no Refugees Convention nexus with the feared detention because the detention would be the consequence of the non discriminatory application of a law of general application. While the applicant also disputes that finding, it was accepted as a distinguishing feature in the recent case of MZZUO v Minister for Immigration [2014] FCA 1267 at [14]-[16]. That is not to say that the non discriminatory application of a law of general application can never fall within the scope of the Convention[36]. The applicant submits that MZZUO should be distinguished on its facts. I disagree. I see no basis in this case for reaching a different conclusion to that in MZZUO. Consistently with that decision, I would refuse relief in this case notwithstanding the Tribunal’s error.
[36] See SZMFJ v Minister for Immigration (No 2) [2009] FCA 95
The Tribunal may also have been wrong at [61] to find that there is no particular social group of failed asylum seekers in Sri Lanka. Apart from being inconsistent with the other decisions of the Tribunal, the Tribunal’s conclusion that the postulated groups is defined by the fear of harm depends upon the element of illegal departure, which in my opinion is not a necessary or essential attribute of the group.
Whether a group is capable of constituting a social group under the Convention involves a question of law[37].
[37] Dranichnokov v Minister for Immigration (2003) 197 ALR 389; [2003] HCA 26 at [26] per Gleeson CJ
In the present case, the Tribunal held that “I do not accept there is a particular social group of failed asylum seekers as such a group is necessarily in these circumstances defined by the harm they fear”[38].
[38] CB 214[61]
This reasoning was probably erroneous because it is incorrect to proceed on the assumption that failed asylum seekers are incapable of amounting to a particular social group, and it reveals a misunderstanding as to what is meant by a group being defined by the harm feared.
Membership of the group was defined by two requirements:
a)the rejection of an asylum claim;
b)being returned to Sri Lanka.
The applicant did not claim that either of these per se amounted to the infliction of harm by anyone in Sri Lanka nor, on the face of it, were these requirements capable of amounting to such harm given that both were completely outside the control of anyone in Sri Lanka. Neither having an asylum claim rejected nor being returned to Sri Lanka could conceivably amount to the infliction of persecution by Sri Lankan authorities.
However, the legal correctness of the Tribunal’s reasoning is effectively irrelevant because the Tribunal’s decision is supported by the alternative finding of a lack of a Convention nexus to the harm feared. In the circumstances, it is unnecessary to express a final view on this question.[39]
[39] See in that regard the observations of Hayne J in SZWAU v Minister for Immigration [2015] HCA Trans 2
I reject grounds 4-6.
Conclusion
The applicant has failed to establish that the Tribunal decision should be set aside on the basis of jurisdictional error. I will dismiss the application.
I will hear the parties as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 February 2015
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