SZTPI v Minister for Immigration & Border Protection

[2015] FCCA 1326

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPI v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1326

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal assessed the full integers of the applicant’s claims for complementary protection – whether the Refugee Review Tribunal failed to take into account relevant considerations – whether the Refugee Review Tribunal correctly applied the complementary criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 474

Cases Cited:
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

Applicant: SZTPI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2990 of 2013

Judgment of: Judge Emmett

Hearing date: 20 May 2015

Date of Last Submission: 20 May 2015

Delivered at: Sydney

Delivered on: 20 May 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Tamil interpreter

Solicitors for the Respondents: Ms Louise Buchanan (Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2990 of 2013

SZTPI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. 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 6 February 2013 and handed down on the same date (“the RRT”).

2. I note that the background of this matter, including the applicant’s claims and the RRT decision are accurately summarised by the first respondent in their written submissions filed on 19 March 2014 as follows:

   “Background

   2. The applicant, a 24 year old male citizen of Sri Lanka, arrived in Australia on 28 June 2012 (RD 21). He applied for a protection visa on 12 November 2012 (RD 17-90). A delegate of the first respondent refused the application on 6 February 2013 (RD 91-111). The applicant lodged an application for review with the Tribunal on 13 February 2013, (RD 112-118).

   3. The applicant claimed to fear harm in Sri Lanka on the basis of his Tamil ethnicity and his status as a failed asylum seeker who left Sri Lanka illegally.

   4. The applicant was born in Jaffna in 1989. He and his family moved to India in 1990 to escape the conflict in Sri Lanka and, between 1990 and June 2012, when he left for Australia, the applicant lived with his family in a refugee camp in Tamil Nadu.

   5. The applicant claimed that although his family had not directly experienced any difficulties with the Liberation Tigers of Tamil Eelam (LTTE) or the Sri Lankan Army (SLA), he feared that the Sri Lankan authorities would suspect that he was involved with the LTTE because of his Tamil ethnicity.

   6. On 18 April 2013, the applicant attended a hearing before the Tribunal.

   Tribunal decision

   7. On 5 November 2013, the Tribunal affirmed the delegate’s decision. It considered country information and found that the risk for a Tamil, including a Tamil who comes from an area previously controlled by the LTTE, suffering harm for those reasons alone was remote (RD 240 [64]).

   8. The Tribunal found that there was no evidence that the applicant would suffer harm because he was a failed asylum seeker, though it accepted that the applicant may be briefly detained in remand and fined for leaving the country illegally (RD 241 [67] and [69]). It found that there was no reliable evidence that Tamils suffer harm or mistreatment in this process (RD 241 [70]). The Tribunal considered that the range of fines that might be imposed did not amount to serious harm and that the risk that the applicant would be given a jail sentence was remote (RD 241-242 [75]).

   9. The Tribunal concluded that there was no real chance that the applicant would suffer serious harm in Sri Lanka on any of the Convention grounds (RD 247 [121]).

   10. The Tribunal found that the applicant did not face a real risk of significant harm in Sri Lanka for the same reasons discussed in relation to the Convention grounds (RD 247 [122]). It noted reports of poor conditions in Sri Lankan prisons but found that the possibility of the applicant being held in remand briefly did not equate with a real risk of the applicant suffering significant harm as defined by the Act (RD 247 [124]).”

3. The applicant was unrepresented before the court this morning although had the assistance of a Tamil interpreter.

4. A Notice of Appearance was filed in respect of the applicant on 24 March 2014 by Jeganathanan Sinthatharu, solicitor. There has been no Notice of Withdrawal or Notice of Intention to Withdraw filed in this Court. I note that an Amended Application and submissions in support were filed on behalf of the applicant by the applicant’s then legal representative on 24 March 2014.

5. I note that the written submissions were signed by Paul Bodisco, of counsel. On 19 May 2015, my chambers were informed by Mr Bodisco that he no longer had instructions in respect of this matter and that he believed that the applicant’s solicitor was overseas. The solicitor for the first respondent, Ms Buchanan, also informed the Court that it was the first respondent’s understanding that the applicant’s solicitor was overseas but that no Notice of Intention to Withdraw had been received by the first respondent.

6. Ms Buchanan attempted to telephone the applicant’s solicitor on the mobile telephone number provided in the Notice of Appearance. However, that that telephone number was no longer connected. In the absence of any further information from any other person, I make no comment on the conduct of the applicant’s solicitor, given that the last document filed on behalf of the applicant was 24 March 2014. It is, of course, the responsibility of any legal representative who seeks to withdraw from a matter to ensure that they do so in accordance with the Federal Circuit Court Rules 2001 (Cth). That does not appear to have occurred in this case.

7. The applicant confirmed that he relied on the matters of complaint identified in the submissions prepared by Mr Bodisco and filed on 24 March 2014. I note that those submissions do not purport to address the grounds of the Amended Application filed on 24 March 2014. The grounds of the Amended Application are as follows:

   “GROUND ONE:

   The RRT has failed to assess the full integers of the Applicant's claim under the complementary protection provisions.

   Particulars

   The RRT has failed to deal with the claim advanced by the applicant that he would face a real risk of significant harm on the basis of being a young Tamil male who may be suspected of being a LTIE.

   GROUND TWO:

   The RRT has failed to take a relevant consideration into account.

   Particulars

   (a) The RRT held, at [124], that there was a possibility of the applicant being held in remand briefly.

   (b) In making this finding, the RRT failed to take into account the applicant's lack of family ties and the possibility this may see him unable to raise a bail.

   GROUND THREE:

   The RRT has failed to apply the correct test under section 36(2)(aa)

   Particulars

   The RRT. In assessing the Applicant's claims under section 36(2)(aa) of the Migration Act, based their findings at paragraph [124] on the "possibility" of being held for a short time on remenad, as opposed to the "real chance" that the applicant may held for a longer period.”

Ground 1

1. The applicant made no further submission in support of ground one of his application beyond those of the written submissions of Mr Bodisco. In the light of the absence of further any submission in support of ground one by the applicant, I agree with the written submissions of the first respondent filed on 15 May 2015, which are as follows:

   “3. The applicant’s submissions do not address the first ground of the amended application and it is unclear if this ground of review is still pressed. If so, the first respondent submits there was no failure to consider an integer of a claim for the purposes of assessing the criteria in s 36(2)(aa) of the Migration Act 1958 (the Act); ie that the applicant faced a real risk of significant harm as “a young Tamil male who may be suspected of being a LTTE”.

   4. In making its findings on complementary protection, the Tribunal referred back to earlier findings it had made, including those made in considering the applicant’s claims for the purposes of assessing whether Australia owed protection obligations arising under the Refugees Convention (s 36(2)(a) of the Act).

   5. The Tribunal considered whether the applicant might face any form of harm as a Tamil suspected of having links to the LTTE. Itnoted that the applicant was a young Tamil male and claimed harm on that basis. The Tribunal acknowledged that country information had been submitted to support the claim that the applicant was at risk as a young Tamil man, but it considered that guidelines issued by the UNHCR in December 2012, which did not list young Tail males as an at risk group, presented a more recent and accurate assessment of  the risk profiles in Sri Lanka (RD 244 [95]). It rejected the claim that the applicant would be suspected of having links to the LTTE (Relevant Documents (RD) 240 [59]-[61], [83]-[85], [87], [119]). It also found, based on country information, that Tamils coming from areas controlled by the LTTE do not face harm for that reason alone (RD 240 [63]-[65]). The Tribunal then went on to consider whether the applicant would face either serious harm or significant harm due to these claims and, in making the latter findings, referred back to its earlier factual findings which it adopted for the purpose of considering the complementary protection criterion. Such an approach was open and available to the Tribunal: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125, SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774.

2. In the circumstances, ground one is not made out.

Ground 2

1. The complaints which are disclosed in the written submissions appear to be an allegation that the RRT failed to take into account the applicant’s lack of family ties and that this may see him unable to raise bail and/or be remanded for an indefinite period due to insufficient family ties. However, the RRT’s decision record makes clear that the applicant gave evidence that he had family in Sri Lanka and that when he and his family took refuge in India, he lived with his parents in India. He gave evidence that he had a grandmother and an aunt still in Sri Lanka.

2. Based on country information before it, the RRT found that a person such as the applicant without any profile or connection with the LTTE was at no more than a remote risk of harm as a Tamil without connections, if returned to Sri Lanka. The RRT found that the country information, which it accepted, that as a Tamil who illegally departed Sri Lanka and unsuccessfully sought asylum abroad was at a remote risk only of being jailed and that a fine was the most likely outcome.

3. The RRT found that the imposition of a fine in the amounts indicated in the country information did not amount to serious harm. The RRT concluded that, in the circumstances, the risk of a Tamil person, such as the applicant, suffering harm in Sri Lanka as a returnee after seeking asylum abroad and leaving the country illegally and suffering harm solely due to those factors was remote. The RRT noted that this finding was not altered by the fact that the applicant lived in India for a number of years.

4. The RRT also did not accept that, being a Tamil man from Jaffna, there is a real chance that the applicant would suffer serious harm. The RRT acknowledged that it may be more difficult for the applicant to establish himself in his native village after being away for some years in view of the military presence and acknowledged that there was some discrimination generally against Tamils and preferential treatment given to Sinhalese. However, the RRT was not satisfied that the applicant would be prevented from taking up residence in his native area and seeking employment there.

5. The RRT had regard to submissions provided by the applicant’s migration agent on country information about conditions in Sri Lankan prisons and penalties imposed. However, the RRT found that the information provided was out of date and that current country information did not support those contentions.

6. The RRT found that mostly likely was that the applicant would be issued with a fine which would be in the lower range and that such fine     did not amount to serious harm for any reason.

7. The RRT accepted that it would be a difficult process for the applicant to return to Sri Lanka and resume his life there. The RRT found that whilst his grandmother may be too old to support him, she was someone with whom at least he could stay, or with a paternal aunt that he had mentioned.

8. The RRT was not satisfied that the applicant would be denied employment or accommodation because he is a Tamil and noted that he was able to secure employment while living in the refugee camp in India.

9. The RRT was not satisfied that there was a real chance that the applicant will suffer serious harm in the process of having to re-establish himself in Sri Lanka after the absence of many years.

10. The RRT found that whilst the applicant’s family and the applicant himself may not wish to return to Sri Lanka, the risk of him suffering serious harm on return is remote.

11. The RRT’s decision record makes clear that it understood the limited family ties that the applicant had and considered his claims in the context of those limitations. The RRT’s findings were open to it on the evidence and material before it and for the reasons it gave on that issue.

12. In the circumstances, the complaint in ground 2 that the RRT failed to take into account the applicant’s lack of family ties is not made out.

13. Insofar as that ground 2 suggests that the RRT failed to consider the possibility that the applicant may not be able to raise bail, no such claim was made by the applicant to the RRT and whether or not the applicant would raise bail was not an issue raised by the RRT either.

14. The RRT referred to country information upon which it relied stating that bail was given on person reconnaissance and that no payment was required but that a family member was required to stand guarantor.

15. There was no evidence before the RRT, nor any claim made by the applicant to suggest that either his aunt or his grandmother or that no other member was available to stand guarantor for him. In the circumstances there was no claim that squarely arose on the material before the RRT to the effect of a claim by the applicant that he would not be able to meet bail imposed upon him.

16. In the circumstances ground 2 is not made out.

Ground 3

1. In ground 3 the applicant asserts that the RRT failed to apply the correct test under s.36(2)(aa) of the Act because, in assessing the applicant’s claims under s.36(2)(aa), the RRT based it’s finding on the “possibility” of being held for a short time on remand whereas the RRT should have applied the “real chance” test that the applicant may be held for a longer period. That complaint is based on the statement by the RRT in paragraph 124. That statement in paragraph 124 is the third paragraph under the heading “Complementary Protection”. For the sake of completeness, paragraphs 122 to 126 under that heading are as follows:

   “122. In essence, the grounds advanced as to why the applicant met the complementary protection criterion are the same as those grounds on which it Was claimed his fear of persecution was well founded. The Tribunal has dealt with above all of thooe grounds and, for the same reasons the Tribunal finds that there is not a real chance the applicant will suffer serious harm in Sri Lanka. The Tribunal finds that there is not a real risk he will suffer significant harm in Sri Lanka.

   123. For the same reasons as those given above, the Tribunal finds that there is not a real risk the applicant will suffer significant harm in Sri Lanka because he is Tamil, from a certain part of Sri Lanka which used to be controlled by the LITE, lived and worked in India, left Sri Lanka illegally and will return there as a foiled asylum seeker from Australia. For the reasons given above, tho Tribunal finds that the risk of the applicant suffering significant harm on those grounds, considered singularly or cumulatively, is remote.

   124. The Tribunal acknowledges country information about poor conditions in Sri Lankan prisons but finds that the possibility of the applicant being held in remand briefly before being brought before a magistrate does not equate with a real risk of the applicant suffering significant harm (as defined in the Act).

   125. The risk of the applicant receiving a jail sentence because of his illegal departure is remote; he will receive a fine and the imposition of a fine within the range-discussed above does not amount to significant harm (as defined in the Act). No claim was made (nor evidence advanced) that the applicant cannot pay this fine or that having to do so amounts to significant harm.

   126. Accordingly, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Sri Lanka, there is a real risk that he will suffer significant harm.”

2. In relation to the RRT’s consideration of complementary protection, clearly paragraph 122 expresses the RRT’s finding that there was not a real chance that the applicant would suffer serious harm in Sri Lanka or that he was at real risk that he would suffer significant harm in Sri Lanka. In making those findings, a fair reading of the RRT’s decision record suggests that the RRT was referring to its statement of the relevant legal principles in paragraph 5 of its decision record and the footnote to that paragraph, as follows:

   “5. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).¹

   …

   ¹ The Tribunal notes the explanation of the ‘risk threshold’ in the Complementary Protection Guidelines, however, in considering s.36(2)(aa) it has proceeded on the basis that the ‘real risk’ test imposes the same standard as the ‘real chance’ test application in the context of assessment of the Refugee Convention definition following the Full Federal Court decision in MIAC v SZQRB[2013] FCAFC 33.”

3. Read in context, the reference by the RRT to the possibility of the applicant being held in remand in paragraph 124 is no more than an expression that the RRT finds remote any real risk of significant harm being suffered by the applicant whilst held in remand. It is clear from the RRT’s decision record that the RRT understood the relevant tests in relation to complementary protection. The RRT referred to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 as authority for the proposition that the real risk test imposes the same standard as the real chance test, the implication being that to the extent that the RRT may have referred to a real risk as opposed to a real chance, it did so interchangeably.

4. In the circumstances, ground 3 is not made out.

Conclusion

1. The RRT made findings based on the evidence and material before it, which were open to it for the reasons it gave, and reached conclusions based on its findings 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.

2. Accordingly, pursuant to s.474 of the Act, this court has no jurisdiction to interfere. The proceeding before this Court, commenced by way of application filed on 2 December 2013, should be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:         2 June 2015