SZUAW v Minister for Immigration

[2016] FCCA 264

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUAW v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 264

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal relied on unspecified findings of fact, failed to deal with all integers of the applicant’s claim, applied an incorrect test, failed to consider all the evidence and failed to conduct the review in good faith.

Legislation:

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUAW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 680 of 2014

Judgment of: Judge Cameron

Hearing date: 4 February 2016

Date of Last Submission: 4 February 2016

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M. Stone of DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 680 of 2014

SZUAW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 20 July 2012.  On 17 December 2012 he lodged an application for a protection visa with the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka because he would be imputed with a political opinion against the Sri Lankan government.  On 6 September 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims in his protection visa application and in a statement attached to that application:

   a)he was born in Trincomalee and had lived there most of his life;

   b)one of his brothers had joined the Liberation Tigers of Tamil Eelam (“LTTE”) in 1987 and had gone missing;

   c)in 1990 he was detained for two hours at a Sri Lankan Army (“SLA”) checkpoint and asked about his LTTE brother;

   d)in 1999 he was detained for a day because the police suspected that his brother had shot a police officer.  He was slapped and denied food but was released at the end of the day.  Several days later he was cleared of suspicion and was advised to tell the police if his brother contacted him;

   e)in 2000 he was again detained for a day because the police suspected that his brother had shot a Criminal Investigation Department (“CID”) officer in a village near their home.  He was insulted and threatened while he was being questioned;

   f)from 2003 to 2007 he lived in Qatar.  On his return to Sri Lanka he was able to obtain an ID card to replace one he lost;

   g)in April 2012 while he was visiting his parents-in-law twenty-two kilometres away, five CID officers attended his parents’ house and demanded that he report to them on his return.  He did not return home for two days and did not report to the CID because he feared he would go missing;

   h)in the first week of May 2012 five CID officers returned to his parents’ home while he was at work and asked that he report to them on his return but he did not do so.  He moved his family to a house one and a half kilometres away but spent most of his time at the home of his parents-in-law;

   i)he was frequently stopped by the police while on his way home from work late at night.  He had feared that the CID might be amongst them or might contact the police about him;

   j)he had planned to travel to Singapore but his agent kept his passport and then disappeared.  A friend had advised him to travel to Australia by boat;

   k)he feared that if he returned to Sri Lanka the CID would arrest, torture and kill him or that he would go missing.  Two of his friends who had relatives involved with the LTTE had been arrested by the CID just before he left Sri Lanka and were still missing; and

   l)he could not relocate within Sri Lanka because he would be required to register with the police and obtain a family card, which would bring him to the CID’s attention.  He could not live with his other brothers in Colombo because of his past interactions with the authorities.

2. At his departmental interview the applicant claimed that he had been stopped by the police on his way to work on four occasions between April and July 2012.  He claimed that on those occasions the police would ask him where he was going and he would have to show them his ID before he was allowed to proceed.

3. In submissions dated 14 December 2012 the applicant claimed to fear harm in Sri Lanka because of his imputed political opinion, his ethnicity and his membership of the particular social group of Tamils from the East of Sri Lanka, illegals and failed asylum seekers. 

4. At the Tribunal’s hearing on 15 November 2013 the applicant made the following additional claims:

   a)he had never had contact with the LTTE during the Sri Lankan civil war because the area where he lived had been controlled by the SLA;

   b)he had last seen his brother in 1990.  His family had been told that he had died in 1995 but someone claimed to have seen him in 1998.  They had no further information about him;

   c)after the civil war ended, the Sri Lankan authorities started looking for LTTE members who were not in detention or were missing.  They became interested in him in April-May 2012 because they suspected he was in contact with his brother and was hiding him.  When the CID attended his parents’ home in April 2012 they asked about his missing brother and told his parents that they suspected that he (the applicant) had links to his missing brother;

   d)the authorities had only questioned him about his missing brother because he had been the last of his siblings to be unmarried and living at home.  When it was put to him that he married in 2009 the applicant then said it was because he and his wife had lived with his parents and the authorities usually suspected persons living with their parents of being in contact with LTTE family members;

   e)he did not report to the authorities but moved between his new house, his work and his parents-in-law’s house.  The authorities did not look for him in any of those places;

   f)in June 2012 he visited some relatives in Jaffna but stayed at different houses so he would not have to register;

   g)he had organised to obtain a passport through an agent because he planned to travel to Singapore for work.  Towards the end of May 2012 he travelled to Colombo to collect his passport.  He collected it himself at the passport office but was directed to a specific counter by his agent.  His agent delayed returning his passport and he feared that it was too risky to wait so he travelled to Australia by boat on 6 July 2012;

   h)security forces had told his family that if they caught him they would set fire to him.  At the end of July 2012, after he had left Sri Lanka, the army and CID enquired about his whereabouts and his mother told them he had gone to work at a studio where he had worked previously.  His mother had given them the wrong information because she had known that if he was caught he would have been in trouble;

   i)when the authorities went to the studio the owner told them he was not there but, while searching the premises, they found pictures of LTTE members and events.  The owner was arrested and beaten and told the authorities that he (the applicant) was involved in the business.  The owner of the studio called his mother and told her that he would be in trouble if he returned to Sri Lanka; and

   j)his mother had told him that after he left his younger brother was questioned about him and his younger sister’s husband had been taken by the authorities on suspicion of organising his trip to Australia.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.

2. The Tribunal found that the applicant had not been truthful about his experiences in Sri Lanka and his reasons for leaving.  It was not satisfied that he had a brother who was missing and had been an LTTE combatant or that he had been targeted by the Sri Lankan authorities because of a suspected link to his brother.  The Tribunal was not satisfied that the applicant had been of interest to the authorities at the time he departed Sri Lanka and found that he would not face harm if he returned there.  In reaching those findings:

   a)the Tribunal noted that although the applicant claimed to have been detained and questioned by Sri Lankan authorities in 1990, 1999 and 2000 in relation to the suspected involvement of his brother in shootings of security personnel, he had also given evidence that he had been cleared of any suspicion in relation to those incidents and that for over a decade neither he nor his family had had further contact or difficulties with the authorities.  It noted that, during that time, the applicant had been able to depart Sri Lanka legally for Qatar in 2003, return in 2007, obtain a replacement ID, marry in 2009 and live and work in his home area without impediment, including during the period of Sri Lanka’s civil war.  In those circumstances, the Tribunal found it implausible that in mid-2012 the authorities would have suddenly renewed their interest in the applicant’s LTTE brother who had been dead or missing since 1995 and would have started to target the applicant for his alleged links with that brother.  It did not accept the applicant’s claim that he alone had been targeted because he had been a bachelor and had been living at home, finding it improbable that the authorities would have differentiated between family members on the basis of their marital status or residential location.  The Tribunal further found that if the Sri Lankan authorities had been pursuing the applicant, it was implausible that they would not have made any efforts to locate him at his wife’s parents’ house, at his work or at his rented house rather than just requesting that he report to them;

   b)the Tribunal noted that its doubts that the authorities had been interested in the applicant were strengthened by the fact that despite his evidence that he had failed to report to the authorities, the applicant had remained in Sri Lanka for two more months until July 2012.  It noted that in that time he had been able to travel without consequence, collect a genuine passport issued in his name and travel to Jaffna, an area with a heightened military presence.  The Tribunal also noted that the applicant’s evidence was that the police had only returned to his parents’ house to look for him at the end of July 2012, three months after they first requested that he report to them, which did not suggest that they had regarded him as a serious target;

   c)the Tribunal noted that the applicant had given inconsistent evidence during his visa application process.  It noted that at his entry interview he claimed to have left Sri Lanka because army intelligence officers had visited his mother in the first week of May 2012 and questioned her about his LTTE brother.  However, the applicant did not mention in the claims he made later that the authorities had been looking for him because they suspected that he was in contact with his brother and that they had demanded he report to them.  He also failed to raise the other claims that he made later, that the authorities had also allegedly visited his parents in April 2012 or that he had been interrogated about his LTTE brother in 1990.  The Tribunal did not accept the applicant's explanation for these inconsistencies and found that he had progressively embellished his claims in an effort to strengthen his case; and

   d)the Tribunal noted that at its hearing the applicant raised a new claim: that when the army was looking for him in July 2012, after his departure, his mother told them he was working at a photographic studio.  Given that the applicant had left Sri Lanka by that time, the Tribunal found the applicant’s explanation that his mother had given the authorities the wrong information so they would not catch him implausible.  It did not accept that the authorities had questioned his younger brother or his brother-in-law on suspicion of organising his trip to Australia.  The Tribunal found that the applicant had introduced the new evidence after his visa application had been rejected in order to enhance his claims.

3. The Tribunal did not accept that the applicant faced harm in Sri Lanka because of his Tamil ethnicity.  While it accepted that until the end of the civil war in May 2009 Tamils in Sri Lanka, especially those living in LTTE dominated provinces, had been at risk of harm because of their ethnicity, the Tribunal found that later country information indicated that being a Tamil from an area previously controlled by the LTTE did not of itself give rise to a risk of harm.  The Tribunal noted that despite being from a former LTTE stronghold the applicant had not indicated that he or any of his family members had in the past faced harm because of their ethnicity or area of origin.  In that regard it noted that it had not accepted the applicant’s claims to have been detained and interrogated on his brother’s whereabouts and found that even if the applicant had been detained and interrogated as he claimed, he had been cleared of suspicion and released within a day on each occasion.  The Tribunal did not consider the treatment the applicant claimed to have received while detained amounted to serious harm.  It further found that while the applicant claimed to have been subjected to security checks at night on his way to work, the procedure of being asked to show his ID and being asked where he was going before being allowed to proceed did not amount to anything more than routine questioning and identity checking.

4. Having rejected the applicant’s claims that he had a brother who had been in the LTTE and that he had been targeted by the authorities because of his connection to that brother, the Tribunal was also not satisfied that the applicant would be imputed with a political opinion linked to the LTTE.  It was not satisfied that the applicant’s Tamil ethnicity or his origins from a former LTTE stronghold, singularly or cumulatively, gave him any actual or imputed political opinion linked to the LTTE or otherwise gave him an adverse profile.

5. In relation to the applicant’s claim to fear harm as a failed asylum seeker, the Tribunal noted that country information indicated that the mere fact of having sought asylum or of being an involuntary returnee to Sri Lanka did not put a person at risk of being targeted and mistreated by the Sri Lankan authorities.  It had regard to reports from human rights groups that some returnees had been tortured and mistreated for seeking asylum abroad but noted that the findings in those reports had been contested by British government agencies and found to be lacking in substance.  Instead the Tribunal accepted information indicating that returnees were subjected to standardised procedures and that there were no observable differences in the treatment of Tamil returned failed asylum seekers as opposed to other groups.  On the basis of that information, it accepted that on his return to Sri Lanka the applicant would go through a process of screening and questioning which would bring him into contact with the Sri Lankan authorities.  However, it was not satisfied that being a returned Tamil failed asylum seeker would cause him to be imputed with a political opinion linked to the LTTE or give rise to differential treatment at the airport or on return to his home area.  The Tribunal found that as the applicant was not of interest to the authorities at the time of his departure he would not be imputed with an adverse profile if he returned as a failed asylum seeker.

6. The Tribunal was not satisfied that the applicant would face serious or significant harm for his illegal departure from Sri Lanka.  In that regard, it found that the applicant’s evidence that he had planned to travel to Singapore on a work visa but had then decided to travel by boat to Australia because of delays with his agent indicated that his illegal departure had been opportunistic rather than an attempt to evade the authorities.  The Tribunal nevertheless noted that the applicant had committed an offence under the Sri Lankan Immigrants and Emigrants Act and, based on country information, it found that he would be investigated for his illegal departure, arrested, charged and possibly detained on remand for a few days pending a bail hearing.  It found that the applicant might be convicted and would face a monetary fine of up to Rs 50,000 rather than a term of imprisonment.  However, the Tribunal was not satisfied that any interrogation, brief detention, possible conviction and monetary fine the applicant would face, singularly or cumulatively, would amount to serious or significant harm.  It did not accept that the applicant’s Tamil ethnicity or any other factors would lead to him suffering harm while on remand.

Proceedings in this Court

1. In his amended application the applicant alleged:

   The RRT failed to deal with the full integers of the Applicant’s claim.

   Particulars

   1.In dealing with the Applicant’s claims under the complementary protection provision at paragraph [69] of the decision, the Tribunal referred to unspecified findings of fact above;

   2.At paragraph [51] of the decision, the Tribunal only dealt with the authorities targeting him “because of his brother’s involvement with the LTTE”, rather than whether the harm he claims could arise for other reasons;

   3.The test under section 36(2)(aa) of the Migration Act does not require the applicant to demonstrate a Refugee Convention-related nexus for the harm feared.

Ground 1

Particular 1

1. In para.69 of its decision record, the Tribunal said this:

   Having considered the evidence before me both individually and cumulatively; and having regard to my findings of fact above – in particular, that I am not satisfied that the applicant had a brother who was an LTTE combatant or that Sri Lankan security authorities (the Army and CID) targeted him or threatened to harm him because of his link to such a brother – I do not accept that there is a real risk that the applicant will suffer significant harm as contemplated by section 36(2A) of the Act.

1. The relevant portion of para.69 indicates that the Tribunal relied on factual findings made in the context of the applicant’s Convention-related claims as the basis for its conclusions on his complementary protection claims.  The Tribunal was entitled to do this to the extent that those findings were relevant and it has not been demonstrated that the findings in question were not relevant to the applicant’s complementary protection claims.  Indeed, I find that they were relevant and that the Tribunal’s reliance on them was not an error.  The first element of the application is therefore not made out.

Particular 2

1. In para.51 of its decision record, the Tribunal stated:

   The applicant has claimed that, while he himself has never had any contact with the LTTE, the Sri Lankan security authorities have targeted him because of his brother’s involvement with the LTTE.  As I have not accepted above that the applicant had a brother who was a member of the LTTE, or was targeted by authorities because of this, I am not satisfied that he will be imputed with a political opinion linked to the LTTE, which gives rise to a real chance of serious harm in the reasonably foreseeable future for the reasons claimed.

2. Although para.51 of the Tribunal’s reasons focusses on the applicant’s claimed links with the LTTE, the Tribunal’s decision record, as summarised earlier in these reasons, demonstrates that the Tribunal considered all the claims made by the applicant and not just whether he might face harm because of his brother’s alleged involvement in the LTTE.  The second element of the application is therefore also not made out.

Particular 3

1. The third particular in the amended application stated:

   The test under section 36(2)(aa) of the Migration Act does not require the applicant to demonstrate a Refugee Convention-related nexus for the harm feared.

2. The proposition propounded by the applicant in the third particular of the allegation made in the amended application is correct.  However, the Tribunal did not apply Convention-related tests to his complementary protection claims.  Consequently, the third ground of the application does not demonstrate a basis on which the Tribunal’s decision might be set aside.

Ground 2

1. At the hearing of this application, the applicant submitted and then gave evidence to the effect that when he travelled to Qatar he had done so with the assistance of people smugglers, that he had told the Tribunal these facts and yet those matters were not recorded by the Tribunal or, presumably, considered by it. 

2. It should be noted that although this proceeding has been on foot now for nearly two years, this is the first time the applicant has made an allegation to this effect.  At the time of the Tribunal hearing and at the time the Tribunal published its reasons, the applicant was assisted by migration agents from the Refugee & Immigration Legal Service.  He also later retained the services of a solicitor, although that solicitor ceased to act before the hearing of this application.  It is significant that neither the applicant’s migration agents nor his solicitor raised any concern or made any allegation that the Tribunal had failed to consider a matter raised with it by the applicant.  It is also significant that at the hearing of this application the applicant said that he had CDs, which presumably contained the sound recording of the Tribunal’s hearing, and which I infer he claimed would prove that he had made the factual assertions to the Tribunal which he alleged in relation to this ground.  However, the applicant did not bring the CDs to court so that the Court might listen to them.

3. All these considerations have to be weighed against the fact that in para.17 of its reasons the Tribunal said this:

   He confirmed that he departed legally for Qatar in 2003 without incident and had no problems with the authorities after he returned to Sri Lanka in 2007.

4. When questioned by me during the course of his evidence as to why the Tribunal would not have recorded what he told it, his response was to the effect that anything disadvantageous he said would have been recorded, while anything advantageous to him would not have been written down or taken into consideration.

5. Given the lateness of the allegation and the fact that the applicant had been advised at various points during the course of this matter and his visa application, I consider it implausible that his account can be correct, given that the Tribunal made a positive statement in direct contradiction of the allegations which he makes.  I consider it unlikely, if the Tribunal’s factual statement which I have quoted were incorrect, that the applicant’s migration agent or his solicitor would not have raised the issue at some point and relied on it as a ground for setting the Tribunal’s decision aside.  I am not persuaded that the applicant said to the Tribunal that his trip to Qatar had been assisted by a people smuggler or that his travel from Sri Lanka to Qatar had an illegal quality.

Ground 3

1. At the hearing of this application the applicant further said that he had told the Tribunal that on one occasion when the CID had called at his parents’ home they had pushed his mother over and broken her leg.  His evidence was that he had told the Tribunal of this and that the Tribunal said in response that the allegation would not be noted or taken into consideration.  This too is a serious allegation in that it alleges an intentional breach of duty on the Tribunal’s part.  Before I would find that the conduct alleged by the applicant occurred, I have to be satisfied of that fact to a level of persuasion commensurate with the gravity of the allegation.

2. It should be noted that the applicant’s migration agent was present by telephone at the Tribunal hearing and there is no indication that the agent complained either at that hearing or subsequently of the conduct which the applicant now alleges against the Tribunal.  Moreover, there was no mention of this conduct in the amended application or in the applicant’s written submissions.  Like the issue concerning the applicant’s travel to Qatar, the hearing of this application was the first occasion on which this serious allegation was raised.

3. I am not persuaded that the Tribunal conducted itself in the way that the applicant alleges.  I do not accept his evidence on this issue as I did not accept his evidence on the question of what he told the Tribunal concerning his travel to Qatar.

Ground 4

1. At the hearing of this application the applicant’s submissions were principally directed to the merits of his protection visa application.  As explained to him at the hearing and as set out earlier in these reasons, the Court has no power to reconsider a person’s visa application.  Consequently, the matters which the applicant raised and which went to that issue do not provide the basis for an order by this Court that the Tribunal’s decision be set aside.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

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

Date: 12 February 2016