SZUJB v Minister for Immigration

[2015] FCCA 1085

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1085

Catchwords:

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal considered applicant’s claims by reference to his particular circumstances – whether Tribunal had regard to documents provided by the applicant to the Department – no jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), s.424A

BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947

Applicant: SZUJB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1355 of 2014

Judgment of: Judge Manousaridis

Hearing date: 21 April 2015

Date of Last Submission: 14 April 2015

Delivered at: Sydney

Delivered on: 21 April 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent: Ms S. Burnett of
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1355 of 2014

SZUJB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant is a national of Sri Lanka and a Tamil who seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2. The applicant claimed he first experienced a fear of persecution in around 1996.  During that year the applicant lived in an area in which members of the Liberation Tigers of Tamil Eelam (LTTE) moved freely and in which the LTTE were forcibly conscripting young Tamil males. The Sri Lankan Army and authorities arrested Tamils for transporting weapons from Colombo to LTTE controlled areas.  The applicant’s family arranged to send the applicant to Germany to escape the dangers that these events posed. 

3. The applicant arrived in Germany illegally in 1996 and remained there until 2000 when, fearing the German Government was to deport him to Sri Lanka, the applicant fled to the United Kingdom. He remained in London until 2006.  While in London, the applicant provided money to LTTE supporters.  He was deported to Sri Lanka in 2006.  On his arrival at the airport in Sri Lanka, the applicant was harassed and interrogated by officers of the Criminal Investigation Department (CID).[1] The CID officers believed the applicant (and the others with whom the applicant had been deported from the United Kingdom) was a member or supporter of the LTTE.  The applicant secured his release by paying a bribe to the CID officers.  The CID later visited the applicant at his home and, again, interrogated him.  The CID visited the applicant on a number of occasions in 2007 and interrogated him on each occasion.[2]

   [1] CB229-230

   [2] CB230

4. In 2008 the CID visited the applicant’s communications shop.  The applicant was not there at the time but the applicant was informed by a government officer that the CID had come to the applicant’s shop because a SIM card purchased from his store had been used by the LTTE.  The CID then frequently came to the applicant’s shop and interrogated him.[3]

   [3] CB230-231

5. Sensing the applicant was being closely monitored by the CID, in 2011 the applicant attempted to flee Sri Lanka and go to Italy.  The applicant was detained at the airport holding a false Italian visa. Sri Lankan authorities beat the applicant, the applicant was then incarcerated for a few days, and was eventually released on bail.[4]

   [4] CB231

6. The applicant began to receive calls from the CID after he was released and he was summoned to report to their office.  The applicant did so as a result of which he was interrogated. Believing his life to be in danger, the applicant fled Sri Lanka in 2012.[5]

   [5] CB231

7. During the hearing before the Tribunal, the applicant said that after he was charged with attempting to leave Sri Lanka on a false document, the CID came to enquire and took him for two nights and threatened him, beat him and burnt him with cigarettes.[6] 

   [6] CB237

8. The Tribunal accepted the applicant departed Sri Lanka illegally in 1996, lived in Germany until 2000 when his claim for asylum was rejected, then lived in England until 2006 when he was deported to Sri Lanka. The Tribunal accepted the applicant remained in Sri Lanka until 2012 when he departed for Australia by boat.[7] The Tribunal also accepted that until his departure from Sri Lanka in 1996, the applicant worked as a fisherman and, on his return to Sri Lanka in 2006, he was a self-employed business owner running a communication services shop.[8] The Tribunal, however, was not satisfied of the truth of aspects of the applicant’s claims and it was not satisfied the applicant was of any particular interest to Sri Lankan authorities.[9] In particular, the Tribunal was not satisfied the applicant was questioned, detained, beaten or tortured by the CID after his arrival to Sri Lanka in 2006.  The Tribunal relied on two matters for this conclusion. 

   [7] CB249, [104]

   [8] CB249, [104]

   [9] CB249, [105]

9. First, the applicant provided inconsistent evidence in relation to his claimed dealings with the CID. These inconsistencies related to the number of times he said he was questioned by the CID in 2007, 2008, 2009 and 2010; and the applicant’s raising before the Tribunal a claim that he had been taken by the CID for two nights and beaten and burnt with cigarettes in circumstances where the applicant did not make this claim before the delegate or in his written application for a protection visa, although he did claim in his entry interview that he had been detained for two days by the CID.  Second, the applicant provided vague and inconsistent evidence as to the claimed visits of the CID to his wife and brother-in-law after the applicant departed Sri Lanka for Australia.

10. The Tribunal also found that the applicant was not a witness of truth in relation to the evidence he gave about his attempts to leave Sri Lanka with a false Italian visa on his passport, his being caught by the authorities, questioned and beaten and detained and then bailed after attending a court hearing.  The Tribunal so found because the applicant gave evidence that it considered was vague, lacking in detail and inconsistent.[10] The inconsistencies related to the time he had been detained, stating before the Tribunal that he had been detained for seven days, stating before the delegate that he had been detained for five days, stating in his written application for a protection visa that he had been detained for a number of days, and stating in his entry interview that he was detained for one day.[11]  The Tribunal also relied on the vague evidence the applicant gave of the charge that was laid against him, the court hearings and whether he had engaged a lawyer.[12]

    [10] CB251, [116]

    [11] CB251-252, [117]

    [12] CB252, [118]-[121]

11. The Tribunal next considered whether the Tribunal was satisfied the applicant would be suspected of being associated with the LTTE.  The Tribunal accepted that when the applicant returned to Sri Lanka in 2006 he was questioned at the airport about any LTTE links and about his mixing with LTTE cadres.[13] The Tribunal did not accept, however, that after this questioning the applicant was suspected of being a member or supporter of the LTTE because he had sought asylum in the United Kingdom and Germany.  The Tribunal reasoned that had the applicant been suspected of being a member or supporter he would have been detained by the Sri Lankan authorities until 2009 when the war ended.

    [13] CB253, [125]

12. The Tribunal did not accept the applicant’s evidence in relation to a SIM card he had sold that was used by a LTTE member and that, for that reason, the applicant would be suspected of being an LTTE member or supporter.  The Tribunal did not accept the applicant’s evidence because such evidence could easily have been learnt and the applicant was not credible as to his claim.[14]

    [14] CB253, [126]

13. The Tribunal further found, therefore, that it was not satisfied the applicant faced a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm if he were to return to Sri Lanka. 

14. Next, the Tribunal considered whether the applicant faced a well-founded fear of persecution because he formed part of a particular social group, namely, failed asylum seekers.  The Tribunal accepted that the applicant as a returnee to Sri Lanka will, on his return, undergo a process that will bring him into contact with Sri Lankan authorities, as the Tribunal accepted occurred in 2006 when the applicant returned to Sri Lanka from the United Kingdom.[15] The Tribunal was not satisfied, however, that the applicant, being a returned Tamil asylum seeker, would give rise to differential treatment for a convention reason or that the process the applicant faces on his return to Sri Lanka as a failed Tamil asylum seeker involves, amounts to, reveals or gives rise to a real chance of serious harm either at the airport in Sri Lanka or on the applicant’s return to his home or at any point in the reasonably foreseeable future.[16]

    [15] CB260, [158]

    [16] CB260, [158]

15. Finally, the Tribunal considered what would occur to the applicant, given he had departed from Sri Lanka illegally.  The Tribunal accepted information from the Australian Department of Foreign Affairs and Trade that under standardised procedures introduced in November 2012 in Sri Lanka which apply to all cases, regardless of a person’s ethnicity or the circumstances in which they left Sri Lanka, returnees are routinely interviewed at the airport by the Immigration and Emigration Department, the State Intelligence Service and the CID.[17]

    [17] CB261, [162]

16. The processes involve police and security clearances, including checks with the person’s local police station.  If the processes reveal outstanding arrest warrants for prior criminal offences, the person would be subjected to further questioning.  Further questioning would occur if a person was of security interest or if there was evidence of people smuggling.  If the person had left Sri Lanka illegally, the person would be arrested and detained until brought before court where persons are usually bailed on their own recognisance.[18] The Tribunal concluded that it was not satisfied that the treatment faced by Sri Lankan returnees who had departed Sri Lanka unlawfully would amount to persecution involving serious harm or would give rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka, nor was the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.[19]

    [18] CB261, [162]-[163]

    [19] CB262, [164]

17. The application for review raises only one ground of review, namely:

    The decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

18. The ground is unparticularised and, therefore, discloses no arguable claim of jurisdictional error by the Tribunal.  The applicant, however, who is not legally represented, made a number of submissions in support of his application.  First, the applicant made a number of statements, the effect of which was that he had told the truth before the Tribunal and, at least implicitly, the Tribunal should have believed the applicant’s claims. In support of that submission the applicant tendered an audio recording of the hearing before the Tribunal.  In separate reasons for judgment I rejected the tender on the ground of relevance.  The only reason the applicant wanted to tender the audio recording was for me to determine whether what the applicant said to the Tribunal was true. This Court does not have jurisdiction to determine whether the applicant had a valid claim for a protection visa, thus the applicant’s submission that the Tribunal should have believed him does not constitute a valid ground for setting aside the Tribunal’s decision.

19. Second, the applicant submitted that the Tribunal did not consider his claim as an individual, by which I understood the applicant to mean the Tribunal did not consider his claim by reference to his particular circumstances, but instead applied a general opinion and the general situation in Sri Lanka when considering the applicant’s claims. That submission is not borne out by the Tribunal’s reasons for decision. As my summary of the Tribunal’s reasons shows, the Tribunal identified the applicant’s claims and it gave detailed reasons for not accepting those of the applicant’s claims it did not accept. Further, the Tribunal’s reasons for decision show the Tribunal engaged with the applicant by asking questions and by providing oral notice under section 424A of the Migration Act 1958 (Cth) in relation to the matters which the Tribunal considered might be a reason it would affirm the delegate’s decision. I do not, therefore, accept the applicant’s submission that the Tribunal did not consider the applicant’s claims as an individual or by reference to his particular circumstances.

20. Third, the applicant submitted that he was not legally trained and, therefore, he was not able to give proper answers legally, and that he was unable to answer questions about legal matters.  This submission assumes that the matters about which the applicant was questioned could only be properly answered by persons who are legally trained or who have the benefit of legal assistance.  It also assumes, to a degree, that the Tribunal asked the applicant questions on matters of law. There is no basis for these assumptions.  The delegate’s reasons for decision record the substance of questions the Tribunal asked of the applicant.  There is nothing in those reasons that indicates legal skill or legal assistance was required to enable the applicant to properly answer the questions, and there is nothing in those reasons to indicate the applicant had any difficulty in understanding and answering the questions. Further, as the Minister submitted, the applicant had the benefit of the services of the assistance of a migration agent who not only appeared at the hearing before the Tribunal but also prepared detailed written submissions.  I do not, therefore, accept that the Tribunal made any jurisdictional error because the applicant was not legally trained or did not have the benefit of legal representation, assuming the migration agent was not legally qualified, or in the manner in which the Tribunal apparently conducted itself at the hearing it gave the applicant as revealed by its reasons for decision.

21. Fourth, the applicant appears to have submitted that he had given documents to the Department of Immigration and Border Protection (Department) but these documents had not been referred to by the Tribunal.  The applicant submitted that his migration agent advised him that he did not have to bring documents with him to the Tribunal and, consequently, the applicant did not bring any documents to the hearing before the Tribunal. The documents the applicant, as I understood him, said he had given to the Department related to his incarceration following his attempt to leave Sri Lanka on a false Italian visa. 

22. Even if I were to accept that the applicant, as he claims, provided documents to the Department, this, too, does not disclose any error on the part of the Tribunal. The Tribunal’s reasons for decision record in two places that the applicant asserted he was telling the truth about what occurred during his incarceration and that he could provide documents.  The first occasion is at paragraph 62 of the Tribunal’s reasons where, in response to the Tribunal’s informing the applicant that it might not believe him because he gave inconsistent evidence about the length for which he was incarcerated following his attempt to leave Sri Lanka on a false Italian visa, the applicant is recorded as responding:

    That he was telling the truth and if he wanted he could provide documents.

23. That indicates the applicant understood the Tribunal did not have any documents, and that he would need to provide such documents to the Tribunal as he said he would provide even if, as he claimed before me, he had provided documents to the Department. The Tribunal cannot be held to have made a jurisdictional error by not looking for documents in the Departmental file in circumstances where the applicant did not inform the Tribunal that there were any such documents with the Department and, in any event, informed the Tribunal that he would be providing documents to the Tribunal.

24. The second occasion the Tribunal’s reasons record the applicant offering to provide documents to the Tribunal is at paragraph 117 of its reasons where the Tribunal again refers to inconsistent evidence given by the applicant about the length of his incarceration following his attempt to leave Sri Lanka on a false Italian visa.  The Tribunal repeated what it had previously stated, namely, that the applicant said he was telling the truth and that he would provide documents. The Tribunal noted that:

    At the time of this decision no documents have been provided.

25. For those reasons the applicant has not established that the Tribunal made any jurisdictional error by not referring to documents which the applicant claims he provided to the department. 

26. My reasons assume that what the applicant told me is true.  That is only an assumption on my part.  I do not accept and would not have accepted had the applicant stated under oath that he had, in fact, provided documents to the department. The Tribunal’s reasons for decision record the applicant stating that he would provide documents to the Tribunal.  That, in my opinion, is inconsistent with his claim that he had provided documents to the Department in circumstances where, when informing the Tribunal he would provide documents, he failed to inform the Tribunal that he had, in fact, provided documents to the Department.

27. Finally, I note that the Tribunal had before it material that, on the basis of the reasoning of his Honour, North J, in WZAPN v Minister for Immigration and Border Protection & Anor [20] may have made it reasonably arguable that the Tribunal in this case made a jurisdictional error. The Full Federal Court, however, recently disapproved of his Honour’s reasoning in WZAPN.[21]  It is, therefore, unnecessary for me to consider the relevance of that reasoning to the application before me.  I further note, however, that on 15 April 2015 the High Court heard the appeal from the orders of his Honour, North J in WZAPN.

    [20] [2014] FCA 947

    [21] BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41; SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40; SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39

28. For these reasons, the applicant has not demonstrated the Tribunal made any jurisdictional error in affirming the delegate’s decision.  I propose, therefore, to dismiss the application and order that the applicant pay the Minister’s costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  28 April 2015