SZTLU v Minister for Immigration

[2016] FCCA 2261

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTLU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2261

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal denied procedural fairness – whether the Tribunal took into consideration complementary protection – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2A), 91R(1)(b), 91R(2), 414, 474, 476.

Applicant: SZTLU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2673 of 2013

Judgment of: Judge Street

Hearing date: 31 August 2016

Date of Last Submission: 31 August 2016

Delivered at: Sydney

Delivered on: 31 August 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms C Saunders
DLA Piper

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2673 of 2013

SZTLU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 October 2013, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.  The applicant claimed to fear harm by reason of his Tamil ethnicity, his membership of a particular social group, characterised by his representative as “wealthy Tamil businessman” and/or “failed Tamil asylum seekers”, as well as by reason of having left Sri Lanka for Australia illegally. 

3. The applicant claims that any risk of harm from Sri Lanka is heightened by the applicant being a fairly wealthy businessman from the Eastern Province, and having left Sri Lanka illegally by boat.  The applicant claims to fear harm from the Sri Lankan forces, the Karuna group and/or a person named Viji and his associates. 

4. The applicant claims that Viji was a person to whom the applicant lent money in the past.  The applicant was born in a particular village in a particular district in the eastern province of Sri Lanka and relocated when the applicant was five years of age to another place and district in the district province where the applicant lived for eleven years. 

5. The applicant lived in Colombo for a year and then for two years resided in Negombo. In 2009, the applicant returned to the place where he had lived for eleven years and stayed there for approximately another year, until the applicant flew to Malaysia.  The applicant lived and worked in Malaysia, until he returned to Sri Lanka in November 2011. 

6. The applicant continued to reside for two months at the place in which he had lived for eleven years. The applicant then relocated to Colombo, where he remained until June 2012. The applicant again returned to the place where he had lived for eleven years and then returned to Colombo. In June 2012, the applicant travelled to Negombo and was taken to Christmas Island on 1 July 2012. 

The Delegate’s Decision

1. The delegate found that some of the applicant’s claims for protection were not credible. The delegate was not satisfied that the applicant’s fear of persecution was well-founded, as defined under the Refugees Convention. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugees Convention reason. 

2. The delegate was not satisfied that Australia had protection obligations to the applicant in terms of complementary protection. The delegate found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, that there is a real risk that the applicant will suffer significant harm. 

3. On 21 March 2013, the applicant sought a review of the delegate’s decision. 

The Tribunal’s Decision

1. On 18 July 2013, the applicant was invited by letter to attend a hearing on 26 September 2013.  Prior to that hearing date, the applicant’s legal representative provided submissions dated 24 September 2013. 

2. The applicant appeared on the hearing date to give evidence and present arguments, and was assisted by his migration representative.  The Tribunal identified the relevant law and then identified the applicant’s claims and evidence.  Relevantly, the Tribunal found that it was not satisfied on the totality of the evidence before it, that the applicant was targeted for extortion as he claims nor, that the applicant was directly a target in connection with his claim, perceived wealth, or business. 

3. In relation to the alleged loan to Viji, the Tribunal found the applicant’s claims and evidence to be highly lacking in credibility and was not satisfied the applicant loaned any sum of money to a person named Viji, or any other person. Further, the Tribunal was not satisfied that the applicant has received any threats in connection with any attempt to recoup such money. 

4. The Tribunal was not satisfied on the evidence presented that any inquiry be made in Sri Lanka in respect of the applicant by any person, or entity wishing to threaten, harm or extort money from the applicant. The Tribunal was not satisfied that at the time the applicant left Sri Lanka for Australia he had any adverse profile with anyone in Sri Lanka, or had any profile which gave rise to a real chance of serious harm, as contemplated by s.91R(1)(b), or s.91R(2) of the Act, or significant harm as contemplated by s.36(2A) of the Act.

5. The Tribunal was not satisfied that the applicant faced a real chance of harm amounting to serious harm in the reasonably foreseeable future in connection with his Tamil race, including his Tamil ethnicity and being a Tamil male from the Eastern Province. The Tribunal was not satisfied on the evidence before it that being a Tamil, or being a young Tamil male from the Eastern Province, imputed the applicant with any political opinion, including political opinions linked to or in support of the LTTE, or opposed to the Sri Lankan authorities, such that the applicant faces a real chance of serious harm in Sri Lanka in the reasonably foreseeable future. 

6. The Tribunal found on the totality of the evidence that it was not satisfied that the applicant has currently, or in the reasonably foreseeable future, any particular markings of wealth that would make him a target for extortion or other harm. The Tribunal found that the evidence did not support that the applicant’s father, mother or siblings have been harmed, or targeted for harm by anyone in connection with the applicant’s father’s assets or business. The Tribunal found that the evidence did not support the applicant’s claims that he was or will be harmed in the future, in connection with his father’s, or family’s wealth and/or business. The Tribunal was not satisfied that the applicant faces a real chance of extortion, or any other form of harm in Sri Lanka, for reason of his family’s perceived wealth and/or business. 

7. The Tribunal was not satisfied that the applicant faces a real chance of serious harm due to his membership of a particular social group characterised either as a “family member of wealthy Tamils” and/or “family member of wealthy Tamil businessman”. The Tribunal considered the applicant’s return to work as a goldsmith and was not satisfied that this would give him any markings of wealth which would give rise to a real chance of extortion or any form of harm which would amount to serious harm as contemplated by s.91R(1)(b) or s.91R(2) of the Act, or significant harm as contemplated by s.36(2A) of the Act. The Tribunal also considered the applicant’s claimed membership of a particular social group, characterised either, as wealthy Tamil business and/or wealthy Tamils and/or Tamil businessmen. The Tribunal considered the applicant’s claim to fear harm by reason of being a failed Tamil asylum seeker, and accepted that the applicant will go through a process that will bring him into contact with the Sri Lankan authorities. However, the Tribunal was not satisfied on the evidence before it, that being a returned Tamil failed asylum seeker, singly, or in combination with the balance of the applicant’s personal and family profile, would give rise to differential treatment for a Convention reason. The Tribunal was not satisfied or, that the processes the applicant faced on return to Sri Lanka, as a failed Tamil asylum seeker, involves, amounts to, reveals or gives rise to a real chance of serious harm, either at the airport in Sri Lanka, or on the applicant’s return to his home, or at any point in the reasonably foreseeable future in Sri Lanka.

8. The Tribunal found on balance, that on the totality of the evidence before it, that it was not satisfied that the evidence reveals a real chance of persecution involving serious harm in connection with the applicant’s unsuccessful application for asylum, either singularly or cumulatively with what the Tribunal accepted were his circumstances in the reasonably foreseeable future. 

9. The Tribunal considered the applicant’s illegal departure.  The Tribunal was not satisfied that the treatment faced by the applicant, having departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when later dealt with by the courts, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what the Tribunal accepted of the applicant’s personal profile and circumstances in Sri Lanka. 

10. The Tribunal was not satisfied that the processes involved gives rise to a differential treatment for a Convention reason. The Tribunal found it was not satisfied that the applicant faces a real chance of serious harm for any of the reasons claimed, or arising on the evidence either singularly or cumulatively. The Tribunal found that it was not satisfied the applicant faces a well-founded fear of persecution for a Convention reason in Sri Lanka now, or in the reasonable foreseeable future. The Tribunal was not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.

11. The Tribunal proceeded to consider the issue of complementary protection. The applicant was not satisfied that the applicant, being a person who had left Sri Lanka illegally, even when considered cumulatively with what is accepted of the applicant’s claimed risk profile and independent sources provided by the applicant’s representative, involves or creates a real risk of treatment amounting to significant harm as contemplated by s.36(2A) of the Act.

12. The Tribunal was not satisfied on the information before it, that there are substantial grounds for believing, that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, he faces a real risk of being: arbitrarily deprived of his life; the death penalty being carried out on him; being subjected to torture; being subjected to cruel or inhumane treatment or punishment; or being subjected to degrading treatment or punishment for any reason claimed or arising on the evidence, including cumulatively. The Tribunal found that the applicant did not meet the criteria under s.36(2) of the Act and affirmed the decision of the delegate.

Proceedings before this Court 

1. On 6 February 2014, the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No no such documents were filed.

2. The grounds of the application are as follows:-

   1.THE TRIBUNAL MADE JURISDICTIONAL ERROR

   Particulars

   a)The tribunal did not stand for the propositions that a relevant consideration has not been taken into account and the decision maker has failed to embark on or complete his or her jurisdictional task merely because some piece and evidence which the tribunal should think is relevant in the evidential sense.

   (i)The Applicant’s statutory declaration paragraph 14. He clearly mentioned that in 2009, “I opened a jewellers shop in Kaluwandikudy, Batticaola District, my father and I would make sell gold jewelries”.

   b)There is a distinction between the tribunal failing to advert to evidence which if accepted, might have let  it make different finding of facts and a failure by the Tribunal to address a contention which, if accepted might establish that the applicant had a well founded fear of persecution for a convention reason.

   (i)In the Statutory Declaration paragraph 14 and 15, the applicant had indicated that “members of the Sri Lankan Army came to our store and asked me to make them some jewelry later few times they asked for money”.

   c)The tribunal failed to consider the asserted claims for a protection visa and that the failure constituted jurisdictional error.

   2.THE SECOND RESPONDENT (THE TRIBUNAL) FAILING TO PERFORM ITS STATUTORY DUTY TO REVIEW THE FIRST RESPONDENTS DECISION UNDER SECTION 414 OF THE MIGRATION ACT 1958. (THE ACT)

   Particulars

   i)The tribunal failed to consider or make findings in relation to the claims made by the applicant in support authorities in Sri Lanka and Karuna Group associated with the government of Sri Lanka

   ii)On this statutory declaration paragraph 16 mentioned “a village man named Viji borrowed LKR 2,00,000 from the Applicant and did not return back”.

   iii)Para 17, the Sri Lankan Army and Karuna group harassed the Applicant.

   3.THE TRIBUNAL EXCEEDS ITS JURISDICTION

   Particulars

   By taking irrelevant consideration into account, failing to take relevant consideration into account.

   i)The Tribunal asked (Para 21 of statutory declaration) the Applicant why he would provide an unsecured loan for such a significant sum in circumstances where the applicant was young.

   4.THE FIRST RESPONDENT FAILS TO CONSIDER THE RELEVANT CONSIDERATION

   Particulars

   i)  In page 11 of First Respondent’s Notification of refusal of protection visa, first Respondent rather than considering the relevant consideration the member considered that the Applicant has concocted this threat from Viji in order to bolster his claims for protection.

   5.THE SECOND RESPONDENT FAILED TO CONSIDER AN ELEMENT OF AN APPLICANT’S CLAIM THAT WOULD AMOUNT TO JURISDICTIONAL ERROR BECAUSE DIV (IV) OR PART 7 OF THE ACT REQUIRES A REVIEW OF THE WHOLE OF THE APPLICANT’S CLAIM. IN THIS CASE THE SECOND RESPONDENT WOULD HAVE FAILED TO DISCHARGE ITS IMPERATIVE DUTIES.

   Particulars

   i)   The Applicant fears he will be harmed and/or mistreated by the Sri Lankan Army or by Karuna group or friends of Viji on account of his Tamil ethnicity (race) and a particular social group of wealthy Tamil businessman.

   6)FIRST AND SECOND RESPONDENTS HAD ACTED BAD FAITH, DISHONESTLY, DISREGARD OF PUBLIC POLICY AND ALL RELEVANT TO THE QUESTION OF WHETHER THE DISCRETION WAS EXERCISED REASONABLY.

   Particulars

   The respondents decision record (DR19) the Tribunal considers the applicants evidence overall to be largely vague, and had shop to earn some money for his family.

   7)THE TRIBUNAL COMMITTED JURISDICTIONAL ERROR WHEN IT FAILED TO ASSESS THE RISK (TRIBUNAL EXTRAPOLATING BASED ON PAST EVENTS) AND/OR WHETHER THERE WAS A RISK OF HARM IN THE FORESEEABLE FUTURE IN RELATION TO COMPLIMENTARY CLAIM.

   8)WHILST THE TRIBUNAL CONSIDERED CERTAIN ATTRIBUTES OR SOCIAL GROUPS, THE TRIBUNAL FAILED TO CONSIDER THE APPICANTS SOCIAL GROUP ATTRIBUTES INCLUDED SUCH AS ETHNICITY, PLACE OF BIRTH, RESIDENCE AND WHETHER HE WAS AT RISK OF HARM BECAUSE OF BEING MEMBER OF THE PARTICULAR SOCIAL GROUP OF BUSINESS (JEWELERS).

   (Errors and Emphasis in the original)

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or, a denial of procedural fairness to the applicant.  The Court explained that in summary this meant that the Court was considering whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair.

4. The Court explained to the applicant that if the Court was satisfied that the Tribunal’s decision was affected by a relevant legal error, the Court would set aside the Tribunal’s decision and send the matter back for further hearing.  The Court explained that if the Court was not satisfied the Tribunal’s decision was affected by relevant legal error, the applicant’s application would be dismissed.  The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

5. From the bar table, the applicant requested the Court to consider his application carefully and the applicant maintained that he should be granted a visa. Nothing said by the applicant from the bar table identified any jurisdictional error. 

6. In relation to Ground 1 of the application, it is apparent from the Tribunal’s decision that the Tribunal correctly identified the applicant’s claims and made adverse findings that were open to it in relation to the applicant’s claims.

7. The Tribunal expressly referred to the opening up of a shop in 2009 and also referred to Sri Lankan Army officers demanding money and jewellery from the applicant. The adverse findings by the Tribunal in relation to the applicant’s claims cannot be said to lack an evident and intelligible justification. There is no substance in the contention in Ground 1 that the Tribunal failed to consider the applicant’s claims. Ground 1 fails to make out any jurisdictional error.

8. In relation to Ground 2, the Tribunal took into account the applicant’s claims concerning the Sri Lankan authorities and the Karuna group, as well as the alleged claim in respect of a man named Viji.  The Tribunal made adverse findings in this regard.  Those adverse findings were open to the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 2 fails to make out any jurisdictional error.

9. It was a matter for the Tribunal to evaluate the applicant’s credit in relation to the applicant’s claim concerning the man Viji. I accept the first respondent’s submission that Ground 3 is in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal that were open on the material before the Tribunal. Ground 3 fails to make out any jurisdictional error.

10. Ground 4 refers to the decision of the delegate. I accept the first respondent’s submission that the decision of the delegate is not a matter within the scope of this Court’s jurisdiction by reason of s.474 of the Act. Nothing in ground 4 identifies any jurisdictional error by the Tribunal.

11. In relation to Ground 5, the Tribunal correctly identified the applicant’s claims. These claims included the applicant’s fear of harm from the Sri Lankan Army, the Karuna group, Viji and friends of Viji, by reason of the applicant’s Tamil ethnicity, membership of a particular social group of wealthy Tamil businessmen. The Tribunal made adverse findings in relation to those claims. Those adverse findings were open on the material before the Tribunal.  Ground 5 fails to make out any jurisdictional error.

1. In relation to Ground 6, an allegation of bias must be clearly alleged and properly proved. No allegation of bias is proved. The adverse findings of the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The allegation of dishonesty is completely without substance and there is no material to support the allegation that the Tribunal acted in bad faith.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. There is nothing on the material before the Court to establish that the Tribunal failed to comply with the requirements of procedural fairness and the conduct of the review. On the material before the Court, I am satisfied that the applicant had a genuine and real hearing. Ground 6 fails to make out any jurisdictional error.

3. In relation to Ground 7, it is apparent that the Tribunal did consider the applicant’s claims in relation to the criterion for complementary protection. The adverse findings by the Tribunal in relation to complementary protection were open. Ground 7 fails to make out any jurisdictional error.

4. In relation to Ground 8, it is clear that the Tribunal took into account the applicant’s claims to fear harm by reason of his ethnicity and by reason of the applicant’s concerns about being a businessman. The adverse findings by the Tribunal were open on the material before the Tribunal.  Ground 8 fails to make out any jurisdictional error. 

5. The application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 October 2016