SZUOK v Minister for Immigration

[2015] FCCA 1429

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1429

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 – allegation that the Tribunal failed to give proper, genuine and realistic consideration to applicant’s alleged mental health problems – allegation that Tribunal denied procedural fairness to the applicant – allegation that the Tribunal failed to consider integers of the applicant’s claim – allegation that Tribunal’s decision was affected by “errors of law” – no jurisdictional error in the Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 424, 425, 427, 430

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
NABE v Minister for Immigration & Multicultural Affairs (No 2) (2004) 144 FCR 1
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Applicant: SZUOK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1717 of 2014

Judgment of: Judge Smith

Hearing date: 31 March 2015

Date of Last Submission: 31 March 2015

Delivered at: Sydney

Delivered on: 29 May 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1717 of 2014

SZUOK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the second respondent (“Tribunal”) to affirm a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka who arrived in Australia on 29 October 2012 on a tourist visa. On 4 December 2012 he lodged an application for a protection visa claiming that he feared persecution at the hands of the authorities in Sri Lanka by reason of suspected connections with the LTTE.

Background

1. The applicant claimed that in latter part of 1996 he was working in a firm as a sales representative. He claimed that one of the general managers, a Tamil, called him to his house saying that he was in great danger and needed help. The applicant went to this person’s house and found that he had been assaulted and left bleeding. He called the doctor and while he was waiting five CID police officers arrived at the residence and arrested the general manager. Both he and the applicant were taken to CID headquarters. The applicant was questioned about the manager and was told that the manager had been involved in trading with the LTTE. The following day a number of LTTE suspects were brought before the applicant and were asked by the CID whether the applicant had supplied them with electronic goods. None of them said that he had and he was released.

2. As a result of that experience, the applicant changed jobs although the CID continued to call him in relation to the manager’s involvement in the LTTE. In 2006 the applicant travelled to the United States of America where he discovered that there would be a market if he were to open an Ayurvedic centre. The applicant set up such a centre in the south of Sri Lanka in October 2011. While most of the employees in the centre were Sinhalese, the caretaker was Tamil. In May 2012 a CID officer called the applicant and told him to report to headquarters for an enquiry. There, the officers asked the applicant whether he had had contact with the general manager of his previous firm. The officers asked him to hand over all the documents relating to the Ayurvedic Centre. In August 2012 the officers called the applicant again asking where the documents were and ordered him to report to them. When he did so, the officers took the applicant’s documents and interrogated him about his trip to the United States of America. They asked how he had made contact with foreigners who attended the centre.

3. The following day, CID officers arrived at the centre, arrested the applicant and took him back to the headquarters. They asked him about the details of the caretaker and the doctors who had practised at the centre and the applicant confirmed that he had told them about the discussion with the officers the previous day. The officers then beat the applicant and took him to a prison cell in a remote area. There, he was detained for nearly a month and was accused of arranging to meet with foreign delegates to have political meetings with them to pass on information to foreigners and foreign dignitaries about the killings of Tamils by the authorities during the war. The applicant was told that the officers wanted him to leave the country and never return otherwise he would be killed by their men. The applicant paid a bribe and arranged to travel outside of Sri Lanka as soon as he could.

4. On 12 August 2013 a delegate of the first respondent decided to refuse to grant the applicant a visa and the applicant applied to the Tribunal for review of that decision.

5. On 1 April 2014 the applicant attended a hearing conducted by the Tribunal and the Tribunal made its decision on 5 June 2014.

Tribunal’s decision

1. At the beginning of its statement of reasons the Tribunal noted that, at one point during the hearing, it had expressed concern that the applicant demonstrated difficulties recalling whether his most recent overseas destination prior to his current stay in Australia was Thailand or China. It noted that in response, the applicant mentioned that he had “mentally fallen down” as he was always thinking of his past mistreatment. The applicant also said that his age was a possible reason for the difficulties in recalling where his most recent overseas destination was. The Tribunal considered these matters as potentially going to the applicant’s ability to give evidence. However, it concluded that there was no incapacity in the applicant to give evidence because the allegation was not supported by medical documentation. The applicant also did not make any comment about such concerns at any other point during the hearing which spanned around three hours and, finally, the balance of his evidence revealed an ability to communicate in extensive detail regarding past events including those as far back as 1996.

2. The Tribunal found that the applicant had not been truthful about significant aspects of his claims. This finding was based upon the cumulative effect of a number of matters concerning the applicant’s evidence. Amongst those matters were the following:

   a)the applicant’s extensive and successful career until October 2012 in Sri Lanka without any adverse effect on his professional reputation did not support his claims that he was of adverse interest to the Sri Lankan authorities since 1996 in connection with the questioning of him in 1996: [13].

   b)the applicant had no difficulties or adverse attention during or in connection with his travels within Sri Lanka or outside Sri Lanka at any time, which the Tribunal found to be inconsistent with his claims to have been constantly monitored and to have been a prisoner in his own home: [14];

   c)the applicant’s wife and children had been able to go about their daily lives and business without any demonstrated harm, hindrance or intimidation: [15];

   d)the applicant left Sri Lanka legally using his own passport and identity without any difficulty: [15];

   e)the applicant changed his evidence about the way in which he obtained his new passport: [16];

   f)the applicant’s evidence about what he did in the United States of America without income for almost a year and a half was vague and unconvincing: [17]; and

   g)the applicant was unable to produce any documents corroborating his ownership of the Ayurvedic resort and the Tribunal was unable to find any reference to that resort on the Internet: [18] – [20].

3. The Tribunal found that even if the applicant was held by the CID and questioned about the involvement of the general manager in the supply of goods to the LTTE, his own evidence suggested that upon his release he was no longer considered to be of adverse interest to the CID. This, in turn, suggested that after his release in 1996 the applicant had no actual or imputed profile which was connected to the LTTE or in opposition to the Sri Lankan authorities or otherwise which might have made him of adverse interest to the Sri Lankan authorities or any of its agencies and the Tribunal found that to be the case: [26] – [27].

4. The Tribunal found that the applicant’s evidence in respect of the incidents of 2012 was vague, speculative and unconvincing in multiple ways, including in respect of further claims of the identities of the foreign dignitaries visiting his resort and whether the caretaker was involved in anything of concern to anyone and what those concerns were: [36].

5. The Tribunal was not satisfied that the applicant was the proprietor of an Ayurvedic resort at any time in Sri Lanka or that he was questioned by the CID in May 2012 in connection with that resort or anything else. It was not satisfied that he was detained for any period in 2012 or that he paid any bribe to the CID or anyone else. It found the applicant had not left Sri Lanka under threat of any nature including that he would be killed or harmed if he ever returned there or revealed his claimed mistreatment to anyone.

6. On the basis of those findings the Tribunal concluded that the applicant did not face a real chance of serious harm as contemplated by sub-ss.91R(1)(b) and 91R(2) of the Act or a real risk of significant harm as contemplated by s.36(2A) of the Act in Sri Lanka in the reasonably foreseeable future for any of the reasons claimed or arising in the evidence including cumulatively: [37]. For those reasons the Tribunal found that the applicant did not satisfy the criteria for the grant of the protection visa and so affirmed the decision of the delegate.

Consideration

Ground 1: Mental Health Problems

1. In the first ground of his application, the applicant raises a variety of arguments connected with the way in which the Tribunal dealt with the applicant’s inability to recall which country he had visited on his last trip overseas before arriving in Australia. It is contended that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s alleged mental health problems and denied procedural fairness to him. There are six particulars to this ground each of which is misconceived for the following reasons:

   a) The first particular is that the Tribunal gave no weight to the applicant’s complaint on the hearing date that he had issues impacting on his capacity in recalling past events. Further it is contended that the Tribunal dismissed the information arbitrarily, merely because the allegation was not supported by medical documentation. The way in which the Tribunal dealt with the applicant’s apparent forgetfulness is dealt with at [8] above. It is clear that, contrary to the applicant’s assertion, the Tribunal gave careful thought to the reasons given by the applicant for his forgetfulness. Thus, it cannot be said that the Tribunal gave no weight to the applicant’s complaint. Further, the Tribunal’s reasons disclosed that its consideration were based upon logical grounds and so cannot be said to have been arbitrary.

   b)     The applicant next complains about the Tribunal statement that it was not satisfied that the applicant had issues of capacity which adversely impacted his ability to give evidence and present arguments or present his claims for Australia is protection to the Department or Tribunal. That conclusion, however, was clearly open to the Tribunal for the reasons it gave, in particular, that there was no medical evidence to support any mental incapacity and that the applicant had, in every other respect, been able to give detailed and extensive evidence about his claims.

   c)     The applicant next complains that the Tribunal failed to observe the procedures required by sub-s.427(1)(d) of the Act. However, that section imposes no requirement upon the Tribunal: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [22] – [23], [41] per French CJ and Kiefel J, [88] – [89] per Gummow J.

   d) The fourth particular is that the Tribunal failed to get more information on mental health from a professional as provided in s.424 of the Act but instead formed its own view on the issue of mental health without any medical evidence. Section 424, as with sub-s.427(1)(d), imposes no obligation upon the Tribunal to obtain information. For that reason, this particular fails for the same reason as the previous particular.

   e)     The fifth particular is that Tribunal did not act according to substantial justice and the merits of the case pursuant to s.420 of the Act. Section 420 of the Act does not impose a freestanding obligation, the breach of which constitutes jurisdictional error: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332. For that reason this particular is misconceived.

   f)   The sixth particular is that the Tribunal failed to provide a mechanism of review that is fair, just, economical, informal and quick according to substantial justice and the merits of the case. That is simply another way of saying the fifth particular and raises nothing new.

2. Leaving aside the particulars, there is nothing to suggest that the Tribunal denied the applicant procedural fairness in any way. There is no evidence before me to support any contention that the applicant was in any way hindered from giving evidence so that he did not have the proper opportunity under s.425 of the Act to give evidence and present arguments. The first ground is rejected.

Ground 2: The Tribunal denied procedural fairness to the applicant by commenting on his mental health without being a party to the proceedings at the Department interview

1. The proposition underlying this ground is that the Tribunal was not entitled to form any view about the applicant’s ability to give evidence before the Department without having been present at the Department’s interview. That proposition is untenable. The Tribunal listened to the audio recording of the applicant’s Department interview: [8]. Thus, it had material on which it could form an opinion about the applicant’s ability to give evidence. Beyond that, it was a matter for the applicant to put evidence or other material before it that might suggest that he was in fact incapable of giving evidence before the Department. The fact that he did not do so does not mean that he was denied procedural fairness or in any way impugned the Tribunal’s decision. This ground is rejected.

Ground 3: Failure to consider fear of persecution arising from being a possible witness rather than a suspect in connection with the general manager

1. This ground is based upon the following statement by the Tribunal, at [25]: “He did not dispute the Tribunal’s observation that his evidence suggests that he was considered by the CID to be a possible witness rather than a suspect in respect of (the general manager’s) claimed dealings with the LTTE.”

2. It may be accepted that the failure by the Tribunal to consider a claim that arises from established facts or that which has been expressly made might constitute jurisdictional error: NABE v Minister for Immigration & Multicultural Affairs (No 2) (2004) 144 FCR 1. However, in order to constitute a claim, there must be a possibility which, if accepted, would establish that the applicant meets the criteria for the grant of a protection visa. There is nothing to suggest in this case that the fact of being a witness in relation to investigations concerning the supply of goods to the LTTE might have drawn the adverse attention of the authorities. For that reason, the mere fact of being a witness was not a claim which was required to be considered by the Tribunal. In any event, even if I am wrong about that, this ground will fail for a more fundamental reason.

3. As the Full Court of the Federal Court explained in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [47] it may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Here, the Tribunal found that on the applicant’s release from questioning by the CID in 1996, he had no actual or imputed profile which was connected to the LTTE or opposed to the Sri Lankan authorities for which otherwise made him of adverse interest to the authorities or any of its agencies: [26] – [27], [37]. That finding meant that, even if the fact that the applicant might have been considered a witness by the CID was a claim that was required to be considered by the Tribunal, the issues raised by that claim were subsumed in the Tribunal’s more general findings. For that reason, there was no error committed by the Tribunal by failing to specifically address the issue raised by this ground. The third ground is rejected.

Ground 4: Failure to consider claim of harm for reason of membership of a particular social group (Sinhalese businessmen and failed Sinhalese asylum seeker)

1. There are two difficulties with this ground: first, the applicant himself never raised the possibility that he might face persecution for reasons of membership of any particular social group; and secondly, such a possibility did not clearly arise on the material. The applicant’s claims were expressly based upon his particular connection with the general manager in 1996 and the interest of the authorities in that general manager as well as the applicant’s conduct of the Ayurvedic centre/resort in 2012. While, as noted above, the Tribunal is obliged to consider claims that clearly arise on the material, it is not required to excavate any possible claim or to sift carefully through a morass of material in order to determine whether such a claim has been made. For those reasons, there was no jurisdictional error in the tribunal’s failure to deal with any claim based upon the particular social groups as now framed by the applicant. The fourth ground is rejected.

Ground 5: Error of law

1. In this ground the applicant asserts the generalised error of law. There are twelve particulars:

   a)Failure on the part of the Tribunal to understand the meaning of persecution under the 1951 Convention and the relevant articles.

   The Tribunal’s understanding of persecution did not really arise because the Tribunal rejected all of the applicant’s claims. For that reason even if there were any error in the Tribunal’s understanding of the meaning of persecution it would not affect the decision and so would not have constituted jurisdictional error.

   b)Failure on the part of the Tribunal to give the right and proper consideration in relation to s.91R and s.36(2A) of the Act.

   This particular fails for the same reason as particular a).

   c)The issue of the applicant being a witness clearly arose during the hearing but no determination was made by the Tribunal whether the applicant might be subjected to adverse treatment and persecuted in that capacity by the Sri Lankan authorities in the reasonably foreseeable future.

   This particular repeats ground three and is rejected for the same reasons as that ground was rejected.

   d)[The Tribunal failed to consider the applicant’s fear of harm from the Sri Lankan police.]

   The Tribunal rejected all of the applicant’s claims and in particular the claim that he was threatened with harm. That finding dealt conclusively with any source of harm which the applicant may have claimed. This particular is rejected.

   e)The Tribunal failed to take into account that there were, or might be, other agents that the applicant feared for reasons of the persecution one which is Convention based.

   This particular is rejected for the same reasons as particular d).

   f)The Tribunal failed to consider those who are suspected to be linked with the [LTTE] are considered to have a risk profile.

   This ground attacks the merits of the Tribunal’s decision and as such raises no jurisdictional error. In any event, the Tribunal, as has been said on a number of occasions, simply rejected all of the applicant’s claims. That is to say, that the Tribunal found that the applicant was not suspected of any links with the LTTE.

   g)Failure on the part of the Tribunal to consider and determine the issue of imputed political opinion that arose clearly in his claims for a protection visa. This clearly denied procedural fairness to the applicant.

   This particular, too, must fail in light of the Tribunal’s rejection of all of the applicant’s claims.

   h)The Tribunal failed to address and consider the issue that the authorities fear those abroad have been LTTE supporters and that they may suspect the applicant is a failed asylum seeker.

   This particular is rejected the same reasons as particular g).

   i)The Tribunal decided in its decision (at page 13 of 18) that the CID had or has any file against the applicant for any reasons he claims without any conclusive evidence. There appears to be no probative evidence to support the findings of the Tribunal in relation to this matter.

   The Tribunal is not required to have conclusive evidence of any matter before it rejects an applicant’s claims. The Tribunal’s rejection of those claims in this case were based upon logical grounds, including the inconsistencies in his accounts, the vagueness of some aspects of his evidence, and the applicant’s extensive travel and business activities in the period during which he said he was under close scrutiny by the CID. Those, and all of the other reasons given by the Tribunal, supported the Tribunal’s credibility findings. This particular is rejected.

   j)The Tribunal considered irrelevant issues concerning his past visit to America and his business venture.

   This particular takes issue with the merits of the Tribunal’s decision and so does not raise any jurisdictional error.

   k)Failure on the part of the Tribunal to address, cumulatively, all the essential elements of the claim or claims raised by the material evidence...

   As noted, the Tribunal dealt with all of the applicant’s claims by rejecting them. It did so expressly on the basis that it considered those claimed cumulatively: [37].

   l)The Tribunal fell into error because it failed to understand the basis upon which the applicant claims a well-founded fear of persecution.

   The applicant has not explained the way in which he says the Tribunal misunderstood his claims. In any event, it is clear that he did not. It rejected them.

1. The fifth ground is rejected.

Ground 6: Complementary Protection criterion

1. This ground, in effect, repeats four of the particulars claimed in ground five but in respect of the criterion found in s.36(2)(aa). The ground is rejected for the same reasons as ground five.

2. At the hearing of this matter the applicant raised three arguments: first, that the Tribunal did not question him about his fear of harm in Sri Lanka; second that the applicant was forgetful at the hearing because he was thinking about his family; and third that the applicant faced death threats if he went back to Sri Lanka.

3. The applicant did not produce any evidence of what occurred at the hearing and the only material that went to that question was contained in the Tribunal’s statement of reasons prepared under s.430(1) of the Act. Those reasons reveal that, contrary to the applicant’s assertion at the hearing, the Tribunal did raise the issue of his claimed fears of harm in Sri Lanka at the hearing conducted: see for example [25] – [26], [32], [34], and [36].

4. As to the second matter, the Tribunal accepted that the applicant may have had a momentary lapse in his ability to recall recent overseas travels: [9]. It went on to say that it was not satisfied that the applicant had any issues of capacity which adversely impacted upon his ability to give evidence and present arguments. There is no evidence before the Court to indicate that the Tribunal was wrong in this statement.

5. The third matter amounts to no more than a statement of disagreement with the Tribunal’s conclusion on factual matters. As such, even if what the applicant says is correct, it does not indicate any jurisdictional error in the Tribunal’s decision.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed with costs.

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

Associate: 

Date: 29 May 2015