SZTWX v Minister for Immigration and Border Protection
[2015] FCA 1289
•20 November 2015
FEDERAL COURT OF AUSTRALIA
SZTWX v Minister for Immigration and Border Protection [2015] FCA 1289
Citation: SZTWX v Minister for Immigration and Border Protection [2015] FCA 1289 Appeal from: SZTWX v Minister for Immigration & Anor [2015] FCCA 1618 Parties: SZTWX v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 796 of 2015 Judge: NICHOLAS J Date of judgment: 20 November 2015 Legislation: Migration Act 1958 (Cth) s 36(2) Date of hearing: 19 November 2015 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 21 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr M Wiese of Clayton Utz Counsel for the Second Respondent: The second respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 796 of 2015
BETWEEN: SZTWX
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
20 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs in the amount of $4,000.
3.The name of the second respondent be amended to Administrative Appeals Tribunal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 796 of 2015
BETWEEN: SZTWX
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
20 NOVEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
INTRODUCTION
This is an appeal from a judgment of a Judge of the Federal Circuit Court dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 January 2014. By its decision the Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse to grant the appellant a Protection (Class XA) visa.
The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived at Christmas Island on 17 February 2012. On 22 June 2012 he applied for a protection visa. His application was refused by the delegate on 19 November 2012. On 16 January 2014 the Tribunal affirmed the delegate’s decision. The appellant then sought judicial review of the Tribunal’s decision by application filed with the Federal Circuit Court on 19 February 2014.
The appellant was represented before the Tribunal by a migration agent and by counsel before the Federal Circuit Court.
THE TRIBUNAL’S DECISION
The Tribunal was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under the Convention Relating to the Status of Refugees (as amended by the 1967 Protocol Relating to the Status of Refugees): see s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). Nor was it satisfied that the appellant is a person who is owed protection obligations under the complementary protection provisions of the Act: see s 36(2)(aa) of the Act. These conclusions were substantially informed by the Tribunal’s assessment of the appellant’s credibility, which was generally unfavourable.
The Tribunal was concerned that there was a deliberate vagueness in the appellant’s evidence. The Tribunal said at [16]:
At the Tribunal hearing, it was particularly difficult to obtain from the applicant a clear picture of his movements in Sri Lanka, and even broad timelines. At least on some occasions, the applicant appeared to have difficulty grasping dates and timelines, although the Tribunal has some concerns that he was also deliberately vague on some occasions. The Tribunal has taken into account that the applicant’s confusion may have been in part due to nerves, and it has taken this into account in its overall assessment. However, it observed nothing and has received no material to suggest that he has any mental health issues. Overall, the Tribunal is nonetheless satisfied that it has been able to assemble a good overview of his whereabouts and circumstances, and that he was able to present his case.
In later paragraphs of its reasons the Tribunal undertakes a quite detailed review of the appellant’s evidence concerning his movements between 2006 and 2012.
The Tribunal said at [27]-[28] of its reasons:
[27]Having regard to the above concerns, the Tribunal makes the following findings of fact. It accepts that the applicant and his family lived in Munaittivu, an area that had been under LTTE control; that they fled the area in mid-2006 when the Sri Lankan authorities attacked LTTE positions; that they lived in a refugee camp until late 2007, when they were able to return to the village; and that, in the meantime, the applicant and his father worked as jewellers in Jaffna, visiting the rest of the family in the refugee camp as the opportunity arose. The applicant told the Tribunal that he could provide a photograph of the home that the family lost in Munaittivu, suggesting that this was evidence of the Sri Lankan authorities’ knowledge or suspicion of his LTTE links. The Tribunal accepts that the family lost one of·their two homes in the village, but does not interpret this to mean that the Sri Lankan authorities have any past or ongoing suspicion of the applicant as an LTTE member or supporter.
[28]The Tribunal accepts that both LTTE cadres and the Sri Lankan authorities may have harassed the applicant while he was growing up, but finds overwhelming evidence in his jewellery apprenticeship in Colombo and later work in Jaffna that he did not have any sustained or more serious problems. The Tribunal accepts that the applicant visited his family in September 2006, during the height of the conflict. Despite its misgivings about the accuracy of the applicant’s accounts of what he experienced then, the Tribunal considers it possible that he had brief encounters with both LTTE cadres and the Sri Lankan military while the battle in and around Munaittivu was underway. It accepts that this may have included brief periods of detention, interrogation and abuse. However, it does not accept that the Sri Lankan authorities (his claimed persecutors now) genuinely believed him to be a LTTE supporter at that time, or that there were any other dealings that now cause them to suspect the applicant of being pro-LTTE.
Amongst other things, the Tribunal rejected (at [33]) the suggestion that the appellant had to engage an agent or pay bribes in order to leave Sri Lanka or that these measures were necessary because the authorities would otherwise have prevented him departing on account of him being a suspected LTTE supporter.
The Tribunal referred (at [51]) to the appellant’s claim that he was at risk of persecution on the basis of his imputed political opinion in favour of the LTTE, which it considered both in terms of imputed political opinion, and membership of a putative particular social group based on a perceived LTTE affiliation. The critical finding on this point is found at [55]:
The Tribunal has considered the applicant’s circumstances as a whole, including as a young Tamil male from the northern/eastern area, and is not satisfied that he has been in the past or will in the future be imputed with a pro-LTTE political opinion. It is also not satisfied that he is a member of any putative particular social group based on such an attribute (the Tribunal is not required in these circumstances to determine whether such a particular social group exists). It follows that the Tribunal is not satisfied that the applicant faces a real chance of persecution for reason of such an imputed political opinion.
THE GROUNDS OF REVIEW
Before the primary judge, the appellant relied upon the following two grounds:
1.The RRT has failed to take into account the full integers of the Applicant’s claim.
Particulars
a.By focussing on the issue of whether the Applicant would face harm at the hands of the Sri Lankan Government, the Tribunal has failed to deal with the full integers of the Applicant’s claim to face harm from non-Government paramilitary forces aligned to the Sri Lankan Government and as squarely raised by the Applicant at various iterations of his claim (see for example CB 10; 14; Transcript page 9);
b.By focussing on the issue of whether the Applicant was in the category of “former LTTE supporters who may never have undergone military training but were involved in sheltering or transporting LTTE personnel”, the Tribunal failed to deal with the claim that the Applicant had been subject to involuntary training by the LTTE.
2.The RRT has failed to make a relevant inquiry.
Particulars
a.Whilst acknowledging that it had received “no material to suggest that the Applicant has mental health issues”, the Tribunal referred the Applicant to the Minister on the basis that the Applicant “has been suffering from considerable mental strain including conditions that were exacerbated in detention”. [CB 216 at 77]
b.The letters requesting updated information from the Applicant’s advisors did not contain a request for any information regarding his mental status;
c.The failure to request any mental assessment of the Applicant subverted the obligation on the part of the Tribunal to observe procedural fairness.
The primary judge rejected both of the grounds of review relied upon by the appellant.
THE NOTICE OF APPEAL
The appellant’s notice of appeal raises two grounds which essentially repeat the contentions raised before the primary judge. According to the notice of appeal:
1.His Honour erred in not finding that the Tribunal failed to consider whether to investigate the issue of the appellant’s mental capacities before ready conclusions on the appellant’s evidence and completing the review.
2.His Honour erred in not finding that the Tribunal failed to take into account the full integers of the appellant’s claim.
Particulars
(a)By focussing on the issue of whether the appellant would face harm at the hands of the Sri Lankan Government, The tribunal has failed to deal with the full integers of the appellant’s claim to face harm from non-government paramilitary forces aligned to the Sri Lankan Government and as squarely raised by the appellant at various iterations of his claims; and
(b)The appellant was subject to involuntary training by the LTTE.
CONSIDERATION
I will now deal with each of the two grounds of appeal.
The first ground of appeal picks up what was ground 2 in the amended application. The primary judge rejected this ground at [110]. His Honour said:
I note the references to a number of authorities in the applicant’s submissions. It is settled law that, as a general proposition, there is no obligation on the Tribunal to act in an inquisitorial capacity and investigate the claims of an applicant before it through independent sources (Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22). However, it may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could supply a sufficient link to the outcome to constitute a failure to review. In such a case the failure to make such an enquiry can result in a decision being affected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at 436 [25]. I am not satisfied the applicant has demonstrated, however, that this was the case in respect of the current claim.
I respectfully agree with the primary judge’s analysis. The Tribunal was not obliged to make its own independent inquiries into the state of the appellant’s mental health. The appellant’s mental health was considered by the Tribunal. So much is apparent from [16] of its reasons which I have reproduced at [5] above. As is apparent from that paragraph of the reasons, the Tribunal observed nothing to suggest that the appellant had any mental health issues.
The solicitor appearing for the Minister very properly referred me to a statement made in a written submission from the appellant’s legal representative to the Tribunal dated 14 February 2013. That submission includes the following:
Referral to the Minister for Immigration and Citizenship under compelling or compassionate circumstances
Finally if you are unable to find that the Applicant meets the definition of a refugee under the Refugees Convention the Tribunal may refer the matter for the attention of the Minister under section 417 of the Migration Act. We submit that the Applicant would warrant such a referral in the public interest as the Applicant has been suffering from considerable mental strain including conditions that were exacerbated in detention.
I do not think this statement in the post-hearing submission is inconsistent with what appears in para [16] of the Tribunal’s reasons. The Tribunal did not observe anything about the appellant during the hearing to suggest that he was suffering from any mental health condition. The observations made in the post-hearing written submission are expressly directed not to the appellant’s evidence to the Tribunal, but to a foreshadowed application for a referral pursuant to s 417 of the Act.
I turn now to the second ground of appeal. The appellant claimed that he was at risk of harm due to him being perceived as being “pro-LTTE”. As I have mentioned, the Tribunal referred to this aspect of the appellant’s claims at [51] of its reasons. In the very next paragraph (at [52]) the Tribunal said:
The tribunal is not satisfied that the Sri Lankan authorities or anyone have in the past, or would in the reasonably foreseeable future, impute the applicant a pro-LTTE political opinion.
(emphasis added)
In the appellant’s Entry Interview there is a statement that:
“other groups I don’t know who, but I think they are pro government that have come searching for me and come into my village looking for people. There was a tree behind our house and they put a time bomb in the tree.
Any claim to the effect that the appellant was at risk at the hands of non-government paramilitary forces aligned to the Sri Lankan government could only be based upon a factual premise that the Tribunal expressly rejected at [55] of its reasons ie., that the appellant had in the past, or would in the future, be imputed with a pro-LTTE political opinion. The Tribunal was not satisfied that this would occur in the appellant’s case. I do not think there is any substance to ground 2.
DISPOSITION
The appeal will be dismissed. The appellant must pay the Minister’s costs of the appeal which I assess at $4,000.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 8 December 2015
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