SZULW v Minister for Immigration
[2018] FCCA 258
•9 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZULW v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 258 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal applied incorrect tests when determining whether the applicant was at risk of persecution for being a member of a particular social group. |
| Legislation: Migration Act 1958, ss.36, 91R, 474 Immigrants and Emigrants Act 1948 (Sri Lanka) |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 Minister for Immigration & Citizenship v SZNWC (2010) 190 FCR Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Morato v Minister for Immigration, Local Government & Ethnic Affairs (1992) 39 FCR 401 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 |
| Applicant: | SZULW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 631 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 19 September 2017 |
| Date of Last Submission: | 20 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.A Macauley |
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the Respondents: | Mr K. Eskerie of Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 631 of 2017
| SZULW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 25 July 2012. On 15 November 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka because of his ethnicity and imputed political opinion. On 28 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“RRT”), a predecessor of the second respondent (“Tribunal”), for a review of that departmental decision. He was unsuccessful before the RRT but on 4 October 2016 this Court quashed the RRT’s decision and remitted the matter to the Tribunal for reconsideration. On 30 January 2017 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. The applicant has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s 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 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection. As summarised by the Tribunal, the applicant relevantly made the following claims:
a)he is a citizen of Sri Lanka of Tamil ethnicity and Hindu faith. In 1998 he and his family relocated to India after his father and elder brother disappeared;
b)he returned to live in Sri Lanka on two occasions: for a period between 2003 and 2005 and in 2012. During these periods he worked in Sri Lanka as a knife sharpener and as a painter;
c)in 2005, he returned to India, where he married. In 2010, his wife committed suicide. This incident traumatised him psychologically and led to him experiencing memory loss and difficulty recalling events;
d)during the periods he lived in Sri Lanka he experienced serious difficulties with the Singhalese people because he was a Tamil and they suspected him of being affiliated with the Liberation Tigers of Tamil Eelam (“LTTE”). In 2003 he was abused and assaulted by a Sinhalese customer;
e)when he returned to Sri Lanka in 2012 he stayed with his uncle but remained mostly in hiding to avoid further persecution;
f)following his return someone tipped off the police that a member of the LTTE was hiding at his uncle’s home. Police came to search the house but he managed to escape. The police have accused his uncle of being a people smuggler;
g)approximately ten days after he arrived in Sri Lanka in 2012, he and a friend encountered a group of drunken Sinhalese men who attacked him and accused him of being a Tamil Tiger. He was treated in hospital for his injuries;
h)the applicant’s travel to Australia was funded by money borrowed by his uncle. He and his uncle have been threatened by the people from whom his uncle had borrowed money; and
i)if he were to return to Sri Lanka he would be persecuted:
i)because of his Tamil ethnicity;
ii)as a failed asylum seeker;
iii)because he would be imputed with pro-LTTE political opinions;
iv)because of his membership of the particular social groups “young Tamil males in Sri Lanka”, “individuals suffering from mental health issues”, “failed Tamil asylum seekers returning from Australia”, “male Tamils suspected of being connected to the LTTE” and “failed Sri Lankan asylum seekers”; and
v)because he had left Sri Lanka illegally.
Tribunal’s findings and reasons
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 noted as a preliminary matter that in light of the Federal Court’s decision in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245, it did not consider it necessary to deal with the issue upon which the RRT’s earlier decision had been overturned, namely the applicant’s ability to pay any relevant fine imposed on him under Sri Lanka’s Immigrants and Emigrants Act 1948 (“I&E Act”).
The Tribunal found that the applicant did not have a well-founded fear of Convention-related persecution. The Tribunal based its conclusion on the following findings and reasons:
a)the Tribunal considered the applicant’s evidence to be generally consistent over the course of his entry interview, his protection visa application, his interview before the delegate and his hearing before the RRT. It was against this background that the Tribunal approached new claims which the applicant made at its hearing, those new claims relevantly being:
i)that upon returning to Sri Lanka in 2012 someone tipped off the police, saying a member of the LTTE was hiding at his uncle’s house, that the police came in search of him but that he managed to escape into the jungle;
ii)that upon his return to Sri Lanka in 2012 he had remained mostly in hiding to avoid persecution; and
iii)that creditors had made threats against him and his uncle.
The Tribunal noted that these were not merely new claims which had not been raised before; they were new claims which were inconsistent with the applicant’s previous evidence. The Tribunal considered in this regard the applicant’s longstanding claims that he suffered from memory loss and had difficulty recalling past events but found that even if those claims were true, it was not unrealistic to expect that he would nevertheless have raised them earlier in the proceedings. On this basis the Tribunal refused to accept those claims. It also did not accept that the applicant had ever been suspected of being a member of the LTTE;
b)the Tribunal did not accept that there was a real chance that the applicant would face discrimination amounting to persecution for reasons of his Tamil race if he returned to Sri Lanka, noting that:
i)while it accepted that the applicant might in the past have occasionally encountered verbal and physical abuse from Sinhalese people because of his Tamil ethnicity, it did not accept that there was a real chance that he would be the victim of such abuse again, given that the war had long since ended;
ii)in the Tribunal’s view, the 2012 attack on the applicant bore all the hallmarks of a random incident arising from the fact that the applicant and his friend happened to pass by a group of drunken Sinhalese men at that particular time; and
iii)it considered the applicant’s evidence concerning the status of Tamils in Sri Lanka but preferred the information provided by the Department of Foreign Affairs and Trade to the effect that there were no laws in Sri Lanka that discriminated on the basis of race or language and no discrimination in matters such as education, employment and access to housing;
c)the Tribunal accepted that the applicant would return to Sri Lanka as a failed asylum seeker and be charged under the I&E Act. However, it found that this would be the result of the non-discriminatory enforcement of a law that applied generally and it did not accept that the applicant would be singled out or treated differently, for one or more of the Convention reasons, from anyone else who had departed Sri Lanka illegally in breach of that Act;
d)the Tribunal had regard to country information concerning the categories of people who would be at risk if returned to Sri Lanka. In this regard, the Tribunal noted that the applicant had made no claim to have ever had any association with the LTTE or with political activity supportive of Tamil separatism. Consequently, the Tribunal did not accept that the applicant faced a real chance of harm because of his race, his imputed political opinion in support of the LTTE or his membership of any particular social group, including the particular social groups “Failed Tamil Asylum Seekers returning from Australia” and “Failed Sri Lankan asylum seekers”. The Tribunal also did not accept that there existed a real chance that the applicant would face serious harm in the form of torture or extortion because he was a Tamil if he returned to Sri Lanka; and
e)the Tribunal did not accept that there was a real chance that the applicant would be discriminated against or refused treatment for his anxiety or depression, or that he would be perceived as having a disability because of his mental health problems, such that his capacity to subsist would be threatened. The Tribunal found that any denial of access to basic mental health services in Sri Lanka would not be for one or more of the Convention reasons but because Sri Lanka did not have the mechanisms in place to provide such treatment generally to its citizens.
Proceedings in this Court
Allegations
In the application commencing these proceedings the applicant alleged:
1.The Tribunal: (i) erred in holding that Arts 34, 35 and 35 of Immigrants and Emigrants Act 1948 (Sri Lanka)(I & E Act), prohibiting persons from departing Sri Lanka otherwise than from an approved point of departure and with a passport, were laws of general application and non discriminatory (nor applied in a discriminatory fashion) and, therefore, could not amount to persecution for the purposes of s 91R(1) of the Act: Tribunal’s Decision at [78]; and (ii) should have held that those provisions were discriminatory against the applicant as a member of the social group of Tamils who departed Sri Lanka illegally and travelled to Australia (being a Tamil diaspora country) in search of Asylum.
Particulars
a.The Tribunal appeared to accept that the applicant belonged to a recognised social group of Tamils who departed Sri Lanka illegally and travelled to Australia (bring a Tamil diaspora country) in search of Asylum: Tribunal’s decision at [82] and [87].
b.In any event, the applicant was a member of such a social group, which was defined by more than the members’ shared fear of persecution (Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36] ) or solely by the acts that they had undertaken (Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 405);
c.The Tribunal accepted that upon return to Sri Lanka, the applicant would be charged with an offence pursuant to Art 45 of the I & E Act for contravening Arts 34 and 35 of that Act by departing Sri Lanka illegally: Tribunal’s Decision at [77] and [91]; and
d.Arts 34, 35 and 45 of the I & E Act discriminated against persons belonging to the social group of Tamils who had travelled to Australia (being a Tamil diaspora country) in search of Asylum, even if those provisions could theoretically be enforced against all Sri Lankans: Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 (SZNWC) at [45]-[46] and [48]-[52].
2.The Tribunal committed a jurisdictional error by not undertaking the inquiry assigned to it by s 414 of the Act (therein constituting a constructive failure to exercise jurisdiction) by failing to consider whether the applicant was a person to whom the Commonwealth of Australia owed protection obligations under s36(2)(a) of the Act by reason of the applicant’s well-grounded fear of persecution due to his membership of the social group of Tamils who departed Sri Lanka illegally and travelled to Australia (being a Tamil diaspora country) in search of Asylum.
Particulars
a.The applicant repeats particulars (a) to (c) of ground 1 above.
b.The Tribunal failed to make any findings as to likely consequences of the applicant having committed an offence pursuant to Art 45 of the I & E Act.
c.Before the Tribunal there was evidence that the applicant faced a real risk of receiving a fine of around 50,000 Sri Lankan Rupees (LKR) and up to 200,000 LKR: applicant’s written submissions dated 11 January 2017 at [105]-[107]; applicant’s written submissions dated 23 January 2017 at [35]-[36]; and Tribunal’s Decision at [36].
d.Before the Tribunal, the evidence disclosed: (i) that during the times the applicant had worked in Sri Lanka he had received remuneration between 2,000 and 3,000 LKR per month and was now unemployed in Australia (Appendix A to Form 866C); and (ii) the applicant did not have any other relatives with means to pay any fine on his behalf (and nor did the Tribunal find as much).
e.By reason of the above, the applicant faced a real risk of suffering serious harm pursuant to s 91R(2)(d) of the Act if returned to Sri Lanka by reason of the likely imposition of a fine for contravening Arts 34 and 35 of the I & E Act which the applicant had no means of paying;
f.The Tribunal failed to consider whether the applicant faced a real risk of serious harm pursuant to s 91R(2)(d) of the Act for the above reason.
g.The Tribunal further failed to consider further whether Arts 34, 35 and 45 of the I & E Act served any legitimate purpose and were appropriate and adapted to serve that purpose: SZNWC at [40] and [55]-[56].
h.By reason of the above, the Tribunal did not undertake the inquiry consigned to it so that there was a constructive failure to exercise its jurisdiction: SZNWC at [56].
A third allegation was abandoned.
Legislation
At all material times, s.91R of the Act relevantly provided:
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
…
Consideration
Ground 1
The applicant submitted that the I&E Act “clearly discriminated” against the particular social group comprised of “Tamils who departed Sri Lanka illegally and travelled to Australia in search of asylum”. He argued that the discrimination lay in the fact that the I&E Act disproportionately affected and punished the group’s members as compared with the remainder of the Sri Lankan population in that the imposition of a fine for departing Sri Lanka illegally would disproportionately affect persons belonging to his particular social group when compared with the general population of Sri Lanka. He argued that he would suffer harm in the form of imprisonment in very poor conditions because the fine likely to be imposed on him under the I&E Act would be more than he could pay.
The applicant submitted that the Tribunal erred by failing to direct itself to the discrimination against the particular social group comprised of “Tamils who departed Sri Lanka illegally and travelled to Australia in search of asylum” and by finding that the relevant provisions of the I&E Act were laws of general application which were not discriminatory, or were not applied in a discriminatory way, and whose operation would not amount to persecution of him.
The relevant part of the Tribunal’s reasons is para.78 of its decision record where it was said:
[The applicant’s] representatives also submitted that the fact that the provisions of the Immigrants and Emigrants Act had not been enforced against failed asylum-seekers returned from Australia until 29 November 2012 indicated an intent to punish selectively those who had departed Sri Lanka by boat to seek asylum. However the information available to me indicates that Sri Lankan returnees from Australia are being charged with offences in relation to suspected illegal departure irrespective of whether they left to seek asylum or for other reasons and that the only discrimination involved relates to the distinction drawn between those merely suspected of being passengers on a people-smuggling venture and those suspected of facilitating or organising the irregular migration of people from Sri Lanka. I do not accept on the evidence available to me that [the applicant] will be singled out or treated differently, for one or more of the five Convention reasons, from anyone else who may have departed Sri Lanka illegally in breach of the relevant provisions of the Immigrants and Emigrants Act. I do not accept, therefore, that one or more of the five Convention reasons is the essential and significant reason for any persecution which he may fear in consequence of his illegal departure as required by paragraph 91R(1)(a) of the Migration Act. As I put to [the applicant], I take the view that if he is charged in relation to his illegal departure it will be as a result of the non-discriminatory enforcement of a law that applies generally to everyone in Sri Lanka. (emphasis added)
It can be accepted that, expressly or implicitly, the Tribunal found that:
a)the social group “failed Tamil asylum seekers returning from Australia” existed;
b)the applicant was a member of that group; and
c)the applicant would be charged with breaching the I&E Act were he to return to Sri Lanka.
However, and importantly for this case, the applicant did not claim before the Tribunal that he was a member of the group he postulated for the first time in this proceeding, namely, the social group “Tamils who departed Sri Lanka illegally and travelled to Australia in search of asylum”. It is sufficiently clear from para.78 of its decision record that the Tribunal did not think that the I&E Act discriminated against the particular social groups actually identified to it by the applicant, a conclusion which was open to it on the evidence. However, that consideration did not include the particular social group postulated in this proceeding because the applicant had not raised it with the Tribunal.
The particular social group which the applicant has propounded in this case is similar to the “failed Tamil asylum seekers returning from Australia” group he propounded before the Tribunal in respect of which he was unable to satisfy the Tribunal that he had substantiated a Convention-related claim. The relevant difference between that group and the one now propounded is the detail concerning illegal departure from Sri Lanka and the operation of the I&E Act. It is in respect of that detail that the applicant has framed his argument on the first allegation in the application, as [11] and [12] above make clear.
In Minister for Immigration & Citizenship v SZNWC (2010) 190 FCR 23 Perram J, with whom Moore J agreed, identified the steps to be taken to determine whether a law of general application may nevertheless be persecutory of a particular social group and thus of its members. His Honour said:
First, the decision-maker must ask whether the particular social group claimed exists. Secondly, if the group exists then the decision-maker must ask whether the nominated criminal law discriminates against that group. This is necessary because unless the criminal law discriminates against the group then there can be no question of the group being persecuted by that criminal law. Thirdly, however, discrimination although necessary is not sufficient. If discrimination be shown the decision-maker must then ask whether the criminal law is appropriate and adapted to some legitimate object of the country in question. This is a two-pronged test requiring consideration both of the legitimate object identified as well as an assessment of whether the criminal law is appropriate and adapted to the achievement of that object. (at 32 [40]) (emphasis in original)
In relation to whether a particular law is appropriate and adapted to a legitimate object, McHugh J had earlier said in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225:
Conduct will not constitute persecution … if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race. (at 258) (reference omitted)
See also Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at 402 [43].
Contrary to the applicant’s submissions, the relevant operation of the I&E Act concerned all who contravened it and whose operation, to the extent that it was discriminatory, discriminated against all Sri Lankans who left Sri Lanka illegally, rather than the sub-set of those citizens represented by the newly postulated particular social group or the ones which were raised before the Tribunal: cf SZNWC at 34 [46]. Even so, the shared characteristic of illegal departure from Sri Lanka could not define a particular social group because the only thing which united the relevant individuals was their breach of a law of general application, as I find the I&E Act plainly to have been, rather than a shared characteristic which was the focus of persecutory action: Morato v Minister for Immigration, Local Government & Ethnic Affairs (1992) 39 FCR 401 at 405; Applicant A at 243; Applicant S at 400-401 [36]; and SZNWC at 33 [42]. In that regard, I conclude that the Tribunal did accept at para.78 of its decision record that members of a group larger than the two relevant groups of which the applicant had claimed membership (i.e “Failed Tamil Asylum Seekers returning from Australia” and “Failed Sri Lankan asylum seekers”), and which potentially comprehended them, namely “Sri Lankan illegal departers returning from Australia”, were at risk of being charged with breaching the I&E Act. Put another way, the Tribunal found that the I&E Act was enforced against a group which included the applicant and which might have met the definition of a particular social group as explained in Applicant S. Although unlawful departure from Sri Lanka was a characteristic which was insufficient to identify a particular social group, the people in question were also all returning from Australia. That additional characteristic might have been sufficient to find that those individuals did form a particular social group: SZNWC at 34 [46].
The Tribunal did not consider whether that group was a particular social group as it would have been required to do had the applicant made a claim by reference to it, which he did not do: SZNWC at 32-34 [40]-[44].
As the applicant did not claim that “Sri Lankan illegal departers returning from Australia” were a particular social group, in the circumstances the Tribunal’s failure to consider whether they were did not involve error unless such a claim arose clearly from the materials before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1. Whether a claimant is represented by professional advisers, and whether those advisers articulated a case to the Tribunal which it is later said not to have been dealt with, are questions relevant to whether a matter can be considered to have clearly arisen from the materials before the Tribunal: SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 35 [37]. Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make before the Tribunal are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57].
In this case the applicant was represented before the delegate and the Tribunal by the same professional advisers. The applicant did not contend that he or his advisers had claimed before the Tribunal that “Sri Lankan illegal departers returning from Australia” constituted a particular social group which was at risk of persecution in Sri Lanka and that he was at risk of persecution as a member of that group. In those circumstances I conclude that such a claim did not arise clearly on the materials before the Tribunal and so the Tribunal’s failure to consider it did not amount to error.
The same reasoning and conclusion applies to the particular social group postulated by the applicant in this proceeding, namely “Tamils who departed Sri Lanka illegally and travelled to Australia in search of asylum”.
Ground 2
The second ground of the application is largely determined by the findings made in connection with the first ground of the application. However, it is necessary to address the allegation that the fine which the applicant fears he would face if he returned to Sri Lanka would amount to persecution.
To make out this allegation in the context of this matter the applicant would have to demonstrate that the fine he claims to fear would be imposed on him because of his membership of a particular social group which was subject to discriminatory treatment under the I&E Act, and that that treatment was not appropriate and adapted to achieving some legitimate Sri Lankan government object: Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 303 [28]. An allegation of that sort is not proved by simply demonstrating that an onerous fine might be imposed on the applicant. This is because an applicant’s individual position is not relevant unless he or she can make out membership of a particular social group which is at risk of persecution. For the reasons given earlier, the applicant has failed to demonstrate that the Tribunal erred in not finding that he was a member of such a group.
Therefore the second ground of the application does not identify a basis on which the Tribunal’s decision should be set aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 9 February 2018
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