SZTPG v Minister for Immigration & Border Protection
[2015] FCCA 918
•14 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTPG v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 918 |
| Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal dealt with all claims made by the applicant – whether the Refugee Review Tribunal properly applied the “real chance” test – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474 Migration Regulations 1994 (Cth), reg.2.01 |
| Cases cited: SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 |
| Applicant: | SZTPG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2985 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 14 April 2015 |
| Date of Last Submission: | 14 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stephanie Patterson |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr Martin Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2985 of 2013
| SZTPG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 1 November 2013 and handed down on 4 November 2013 (“the RRT”).
The applicant claims to be a citizen of Sri Lanka of Tamil ethnicity and Hindu faith, who fears harm from government authorities and criminal elements in Sri Lanka.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.
Background
The applicant arrived on Christmas Island on 16 May 2012 having departed illegally from Sri Lanka.
On 15 September 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 17 January 2013, the Delegate refused the applicant’s application for a protection visa.
On 4 February 2013, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 1 November 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.
On 29 November 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant’s claims
The applicant’s counsel, Ms Patterson, summarised the applicant’s claims as follows:
“3. In support of his application for a protection visa, the Applicant, who is of Tamil ethnicity, made specific claims of instances of past persecution. He claimed that a dispute between his father and another fisherman in 2004 led to his family being falsely accused of hiding weapons for the LTTE and then being harassed by Sri Lanka police. The Applicant claimed that having been imputed with a pro-LTTE opinion, he received a series of threatening phone calls in 2007, which led him to leave his parents’ house and live for a number of years with various friends in other towns. The Applicant also claimed to fear persecution from criminal gangs with connections to the police, arising from an incident in 2012 when he intervened when his sister was being harassed by a gang member. The Tribunal considered these claims at [40]-[87] (RD, 247-265) and did not accept the Applicant’s claims about these past events, and so did not accept (at [40]) that the Applicant had suffered serious harm in Sri Lanka in the past.
4. The Applicant also made a more general claim, to fear persecution on the basis of his race and political opinion, because of his Tamil ethnicity. In particular, the Applicant claimed that as a Tamil, he faced discrimination and the risk of extortion or abduction by paramilitary groups. The Tribunal’s conclusion concerning discrimination is at [94] of its Decision (RD, 268)… The Tribunal’s conclusion in relation to the Applicant’s claim of the risk of extortion or abduction at [112] of its Decision (RD, 276).
…
5. The Applicant made a further general claim to fear persecution by reason of his membership of a particular social group, being failed Tamil asylum seekers.7 The Tribunal’s reasoning in relation to this particular social group is at [95]-[113] of its Decision (RD, 268-275).”
The Delegate’s decision
On 17 January 2013, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
The proceeding before this Court
The applicant was represented before this Court by Ms Stephanie Patterson, of counsel.
Ms Patterson confirmed that the applicant relied on grounds 1, 2 and 3 only in the Amended Application filed on 5 March 2015 as follows:
“1. The Tribunal engaged in jurisdiction error by misconstruing or failing to deal with a claim or component integer thereof.
Particulars
a. There was a claim before the Tribunal that the applicant faced a well founded fear of persecution or significant harm by virtue of the questioning process to which he would be subjected upon his return to Sri Lanka. The Tribunal accepted that the Applicant would be questioned, but failed to make findings as to what the questioning process would entail and consider whether that process gave rise to a relevant fear.
2. The Tribunal engaged in jurisdiction error by misconstruing or failing to deal with a claim or component integer thereof, by asking itself the wrong question, or by failing to complete its statutory task.
Particulars
a. There was a claim before the Tribunal or the Tribunal otherwise dealt with a claim to the effect that Tamils faced discrimination in Sri Lanka. The Tribunal accepted that Tamils faced discrimination and rejected the prospect of the discrimination amounting to serious harm in relation to matters such as his education and employment, but:
i. it did not make the findings as to what the other forms of discrimination entailed;
ii. appeared to accept (or alternatively, did not reject) that these other forms of discrimination were persecutory;
iii. alternatively, fettered its consideration of whether the ‘discrimination’ was persecutory by only addressing discrimination in the context of education and employment.
3. The Tribunal engaged in jurisdictional error by misconstruing or failing to deal with a claim or component integer thereof, by making a finding in the absence of evidence, or by asking itself the wrong question.
Particulars
a. There was a claim before the Tribunal to the effect that Tamils faced false accusations and extortion in Sri Lanka (including by police). The Tribunal failed to deal with or misconstrued this claim by failing to deal with it.
b. In the alternative, to the extent that the Tribunal at [115] of its decision made findings as to extortion:
i. this finding was limited to extortion by paramilitary groups and, in the circumstances, did not address the claim that was before it;
ii. further and in the alternative, the Tribunal’s finding rejecting the prospect of extortion by paramilitary groups was made in the absence of evidence;
iii. further and in the alternative, the Tribunal asked itself the wrong question in the context of rejecting the prospect of abduction and extortion by paramilitary groups in that it rejected the claim on the basis that such events had decreased, whereas the question as to whether there was a well founded fear of persecutory harm was not one that could be addressed solely with reference to the present frequency of the incidents relative to past frequency.”
Ground 4 of the Amended Application was not pressed and leave was refused in respect of proposed Grounds 5 and 6 on the basis that there was no utility in the Court allowing those Grounds to move forward in light of the decision of the Full Court of the Federal Court of Australia in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40; and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41.
Ground 1
At the heart of the complaint in ground 1 is a contention that the RRT failed to consider the risk of harm to the applicant on returning as a failed asylum seeker where questioning of him may result in the applicant being imputed with a pro-LTTE opinion. The RRT accepted that those with an actual or perceived association with the LTTE may face a risk of harm in Sri Lanka and that this risk also applies to those with such a profile who have returned to Sri Lanka. However, the RRT was not satisfied that returnees found generally to have links to the LTTE or opposed to the government simply because they have been in Australia. Critically, the RRT made the following finding:
“However, the Tribunal does not accept that the applicant has come to the attention of the Sri Lankan authorities in the past. It does not accept that checks would unearth anything untoward in relation to his background or his family record or that such checks would in any way cause him to come to be regarded with suspicion by the Sri Lankan authorities.”
The RRT also had regard to the applicant’s claim that those with familial association to those who have links to the LTTE are at risk and the RRT accepted that submission. However, the RRT found that the applicant’s family does not have links to the LTTE or are in any way perceived as having links to the LTTE. The RRT also found that the applicant is not a person who is in any way seen as having links to the LTTE or being opposed to the government.
The RRT noted that it had put to the applicant that there was some information suggesting that information who had some association with the LTTE might be at risk and that such people may be visited by the authorities on return to their village. The RRT also put to the applicant that it may doubt that as a returnee or failed asylum seeker he would be targeted for serious or significant harm. The RRT noted the applicant’s response that “instead of that news and newspapers to think as a person from there, especially a Tamil person.” The applicant’s response seems to be suggesting that his risk of harm continues to be because of his Tamil ethnicity.
The claim upon which the applicant’s contentions are based is found in the following submission of the applicant’s migration agent:
“Gilmour J also dismissed the Minister’s appeal in Minister for Immigration and Citizenship v SZQPA and agreed that Review had erred by focusing on the outcome and not the interview process that would subsequently amount to harm.
Therefore, despite the fact the Applicant was not a member of the LTTE (nor any of his family members), it is necessary to consider the treatment (or mistreatment) he would face during interrogation in determining whether or not he was associated with the LTTE. In fact, there is a vast body of country information which illustrates the mistreatment failed asylum seekers face at the hands of the Sri Lankan authorities during this interrogation. ”
Minster for Immigration and Citizenship v SZQPA [2012] FCA 1025 is a case where the reviewer accepted that the applicant’s family was affiliated with the LTTE. That is an entirely different factual scenario to the case before this Court. The RRT in the case before this Court comprehensively rejected the applicant’s claims of past harm either for himself or his family and rejected any perception by the applicant’s family as being linked to the LTTE. The RRT also made the clear finding that the applicant is not a person who is in any way seen as having links to the LTTE.
In such circumstances, it was not necessary for the RRT to consider whether the questioning process itself would subsequently amount to harm in light of the RRT’s findings that there is no association or perception of association of the applicant or his family in being linked with the LTTE.
The factual assumption that underpins the applicant’s complaint in ground 1 is that the applicant would, in fact, be interrogated in order to determine whether he is associated with the LTTE. Such an assumption cannot be made in light of the RRT’s clear findings that neither the applicant nor his family would be perceived to be a person with links to the LTTE.
In the circumstances, it was unnecessary for the RRT to make a finding in relation to the applicant’s complaint that the RRT failed to consider the treatment or mistreatment that the applicant would face in determining whether or not he was associated with the LTTE.
Accordingly, ground 1 is not made out.
Ground 2
At the heart of the applicant’s complaint in ground 2 is a contention that the RRT erred in confining its consideration of the applicant’s fear of discrimination to fear of discrimination in relation to employment, education and in his dealings with the authorities, in circumstances where the applicant’s claim was not so confined.
The applicant’s claim to fear discrimination arises from a submission by the applicant’s migration agent where the submission referred to discrimination “against the Tamil minority continued”; and that “in any dealings with the Police, the Tamil speaking population… appears to be at a disadvantage”.
The RRT accepted that Tamils do continue to face some discrimination in Sri Lanka and noted the applicant’s submission that Tamils face discrimination. The RRT went on to state:
“However, the Tribunal is not satisfied that the applicant has in the past suffered discrimination amounting to serious harm in relation to matters such as his education and his employment… While the Tribunal is conscious that these and the other instances of serious harm referred to in s.91R(2) do not form an exhaustive list, the Tribunal nevertheless is not satisfied that the applicant faces such discrimination in relation to matters such as his employment as to amount to Convention-related persecution. The Tribunal notes that, while it has been claimed that Tamil speaking people are disadvantaged in their dealings with authorities, the applicant’s evidence to the Tribunal was that he speaks Sinhalese quite well. The Tribunal does not accept that he faces a real chance of being discriminated against for reason of not being able to communicate in Sinhalese.”
The RRT also found that there was not any real chance that the applicant would suffer significant economic hardship threatening his capacity to subsist or a denial of capacity to earn a livelihood of any kind threatening his capacity to subsist.
The applicant contended that the RRT only considered specific kinds of discrimination in circumstances where the RRT had accepted the applicant’s general proposition of discrimination against Tamils.
I accept the submission of counsel for the applicant that it is well established that a failure to consider an integer of a claim, or to consider and respond to a clearly articulated argument, is a constructive failure to properly exercise jurisdiction and thus amounts to jurisdictional error (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24-25]; Plaintiff 61 v the Commonwealth (2010) 243 CLR 319 at [90]; NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [55], [57] and [63]).
However, the applicant has not identified any other claim concerning discrimination that was not considered by the RRT, and none was identified by counsel for the applicant in the course of oral submissions.
Counsel for the applicant submitted that the applicant’s claim relating to discrimination was broader, whilst she acknowledged that there were no more specific claims.
The applicant’s claims relating to discrimination were entirely generalised, save as to the disadvantage Tamil speakers may have in dealings with police. As is clear from the RRT’s decision above, that claim was dealt with by the RRT and rejected. Otherwise, the RRT’s finding was a rejection of the applicant’s claim to have suffered discrimination amounting to serious harm in the past. Whilst the RRT referred to the applicant’s education and employment, the RRT was responding to submissions made by the applicant to that effect. No other claim beyond those addressed by the RRT was made by the applicant or arises squarely on the material before the RRT. It is well established that the RRT is only required to deal with claims that squarely arise on the material before it (see NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1).
Further, there is no general obligation on a RRT to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire. There is no obvious failure by the RRT in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Accordingly, ground 2 is not made out.
Ground 3
At the heart of the applicant’s complaint in ground 3 was a contention that in considering whether the applicant was at risk of extortion and abduction in Sri Lanka in the future, the RRT failed to apply the real chance test.
The RRT accepted that abductions and disappearances still occur, although noted that information from DFAT indicated that such incidents had decreased since the time of the military conflict. In the context of its finding that the applicant has not in any way suffered serious harm in Sri Lanka in the past, and its acceptance that some abuses continue to occur, the RRT found that the independent information indicated that the situation in Sri Lanka has improved since the end of the military conflict.
The RRT did not accept that the applicant faces a real chance of being persecuted by the Sri Lankan authorities for any convention reason. It noted that it had regard to claims about the activities of paramilitary groups and the occurrence of incidents such as abductions. The RRT concluded as follows:
“Independent evidence indicates that the incidence of problems such as abductions has decreased. Looking to the reasonably foreseeable future, the Tribunal finds to be remote the chance that the applicant could suffer abduction, extortion, or any other form of serious harm in Sri Lanka at the hands of paramilitary groups, the Sri Lankan authorities, or anyone else.” (emphasis added)
Counsel for the applicant contended that the RRT had not identified or made any findings as to what the frequency of such events were, either in the past or now, and did no more than find that the chance of problems such as extortion and abductions was lower than it had been in the past. Counsel submitted that in determining whether there is a “real chance” of something occurring, it is necessary to assess the likelihood of that then occurring. In support, counsel referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575. Counsel for the applicant submitted that determining whether there was a real chance of persecution required an estimate of the likelihood of extortions and abductions, whereas the RRT only compared the relative rates of extortions and abductions at two different points of time.
However, the applicant’s submissions appear to ignore the RRT’s clear finding that the chance that the applicant would suffer abduction, extortion or any other form of serious harm in Sri Lanka was remote. In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 398, Mason CJ, in considering whether a person has a well-founded fear of persecution, said that
“…I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring, and because it is an expression that has been explained and applied in Australia.” (emphasis added)
Dawson J at 398 stated:
“(a) real chance is not one that is not remote, regardless of if it is less or more than 50%.” (emphasis added)
At 407, Toohey J stated that the real chance test “does not weight the prospects of persecution, but equally, it discounts that which is remote or insubstantial” (emphasis added).
I accept the submission of counsel for the first respondent, Mr Martin Smith, that by finding that the chance of extortion and abduction was remote, the RRT was making a finding that there was not a “real chance” that such incidents would occur.
Accordingly, there was no error in the manner in which the RRT applied the “real chance” test to the applicant’s claim to fear extortion and abductions in the future if returned to Sri Lanka.
Accordingly, ground 3 is not made out.
Conclusion
A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.
The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 14 April 2015
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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