SZURJ v Minister for Immigration
[2016] FCCA 1771
•22 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZURJ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1771 |
| Catchwords: MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) not to grant applicant a Protection (Class XA) visa – whether Tribunal failed to consider integers of applicant’s claims – whether Tribunal failed to consider claim – whether Tribunal failed to consider information relevant to a claim – meaning of “claim”, “integers of a claim” considered – jurisdictional error found. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 200, 414, 430(1)(c), 499 |
| Cases cited: Ex parte Hebburn Ltd; Re Kearsley Shire Council; Ex parte J & A Brown & Abermain Seaham Collieries Ltd; Re Kearsley Shire Council [1947] NSWStRp 24; (1947) 47 SR (NSW) 416 Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 |
| Applicant: | SZURJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1908 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 26 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hughes |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The decision of the second respondent made on 13 June 2014 affirming the decision of the delegate of the first respondent made on 27 February 2013 not to grant the applicant a Protection (Class XA) visa Protection visa) is quashed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Refugee Review Tribunal to review the decision of a delegate of the first respondent made on 27 February 2013 not to grant the applicant a Protection visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1908 of 2014
| SZURJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this application for judicial review, the applicant contends the second respondent (Tribunal) failed to consider a claim the applicant made for the grant of a Protection (Class XA) visa (Protection visa), and integers of other claims the applicant made for a Protection visa.
To properly understand the grounds on which applicant relies, it will be necessary to set out the claims for protection the applicant made before the Tribunal, and the reasons for which the Tribunal rejected those claims.
Applicant’s claims for protection
The applicant is a citizen of Sri Lanka, a Tamil, and a Hindu. According to a statutory declaration the applicant made in support of her application for a Protection visa, the applicant’s father was the chief priest of a temple in Jaffna.[1] People in the area thought the applicant’s father was a supporter of the Liberation Tigers of Tamil Eelam (LTTE) because the LTTE movement held meetings in the temple.[2] Such meetings occurred because the LTTE compelled the applicant’s father to permit the meetings to occur.[3] As a young child the applicant had been told her father had been arrested, then released; that her family attempted to escape to India; and that the family house and the temple had been destroyed.[4]
[1] CB61, [6]
[2] CB61, [6]
[3] CB61, [6]
[4] CB71, [7]
During 2003-2004 the applicant participated in a program called Pongu Thamil organised by Jaffna University “under the auspices of the LTTE”.[5] The applicant participated in the dance and drama component of that program.[6] In 2005 the applicant participated in a tour organised by a private tuition institution the applicant attended. The tour led the applicant to travel to Vanni, an LTTE-controlled area,[7] and, more particularly, to an LTTE camp where LTTE trained young cadres.[8]
[5] CB62, [10]
[6] CB62, [10]
[7] CB62, [11]
[8] CB62, [13]
The situation between the LTTE and the Sri Lankan government deteriorated in 2010. The son (A) of a shopkeeper was abducted. It was common knowledge that the LTTE asked business people for financial support, whether they liked it or not. A’s family was wealthy and the applicant had heard A had previously provided financial support to the LTTE. A’s father was asked to pay a huge ransom, and A was later killed. The applicant said it was the belief at that time that the EPDP (Eelam People’s Democratic Party) and people associated with the army were abducting persons to extort money, and that they targeted people whom they thought were associated with the LTTE.[9] A young man of the Brahmin caste (B) who lived next door to the applicant’s family told the applicant he had spoken with A before A had been abducted, and that B’s number would have been the last number in A’s phone before he was abducted.[10]
[9] CB63, [16]
[10] CB63, [17]
The Criminal Investigation Department (CID) investigated A’s abduction, in the course of which CID became aware that B’s number was the last number in A’s telephone before he was abducted.[11]About two months after A’s abduction, B was arrested, detained in a labour camp for two weeks, but was later released. The applicant noticed a large change in B and, when she asked B what happened to him, B told the applicant “you do not want to get involved in this, keep away from me because they will suspect you”.[12] B’s body was later found hanging at the temple of which he was a priest.[13]
[11] CB63, [18]
[12] CB63, [19]
[13] CB64, [22]
Two days after B’s death, the CID came to the applicant’s house and took the applicant to an army camp. The CID told the applicant it found her details on B’s phone. The CID questioned the applicant about B. The CID told the applicant that B was in the LTTE, and they asked if the applicant was in the LTTE. The CID told the applicant they had information that her whole family was in the LTTE. The CID also asked about C, a former Minister of government. C was assassinated in a Hindu temple of which the applicant’s brother-in-law was the chief priest. The applicant’s sister and brother-in-law travelled to Germany where they were granted asylum.[14]
[14] CB63-64, [23]
The applicant was detained in a room inside the army camp for one and a half days. She was interrogated by five men in a dark room. The applicant was asked about her involvement with the LTTE. The applicant informed them she had been compelled to participate in cultural programs, but otherwise denied any involvement with the LTTE. The applicant was released, but subject to reporting duties.[15] Arrangements were then made for the applicant to flee Sri Lanka.
[15] CB64, [24]
The applicant was assisted by an agent. The agent made two unsuccessful attempts to arrange for the applicant to go to a safe country. The agent then arranged for the applicant to travel to Malaysia on an “entertainment visa”.[16] The agent promised the applicant to make arrangements for the applicant to travel to Australia on an “entertainment visa”. The agent, however, could not get such visa. The applicant arranged to enter into Australia with a passport of a Sinhalese woman that had a photograph of the applicant.[17]
[16] CB64, [27]
[17] CB64, [27]
The applicant claimed that if she returned to Sri Lanka she would be detained and killed like B. After she arrived in Australia, the applicant was informed that men from the Sri Lankan army have been asking where the applicant was.[18] The applicant also claimed she did not hold a valid passport which meant that, if she were returned to Colombo, she would be detained and placed on reporting conditions, and would disappear, like B.[19]
[18] CB65, [29]
[19] CB65, [30]
On the day the applicant lodged her application for a Protection visa, she received a telephone call from a woman who stated she was from the Sri Lankan embassy. The woman asked the applicant questions about why she left Sri Lanka, and about the agent who assisted the applicant to leave Sri Lanka.[20] A few days later, the applicant’s brother in Sri Lanka informed the applicant that three people visited him and asked him questions about the applicant, and about the agent.[21]
[20] CB65, [33]
[21] CB65, [34]
The Tribunal’s reasons
The Tribunal accepted the applicant is a citizen of Sri Lanka, and is a Hindu. It did not, however, accept the applicant faces any risk of harm if she returns to Sri Lanka because of her religion. It also did not accept she would face such harm because of her father’s and her brother’s roles as Hindu priests.[22] The Tribunal relied on country information.[23] Nor did the Tribunal accept the applicant faced any harm, simply because she is a Tamil, or a young female Tamil.[24] Again, the Tribunal relied on country information.[25]
[22] CB210, [63]
[24] CB210, [64]. The relevant country information the Tribunal says it relied is identified in paragraph 58 of the Tribunal’s reasons.
[25] CB210, [64]. The relevant country information the Tribunal says it relied is identified in paragraph 59 of the Tribunal’s reasons.
After noting the applicant claimed Sri Lankan authorities imputed the applicant to be an LTTE associate because of the applicant’s participation in the Pongu Thamil festival, her father’s position as a priest in a Hindu temple used by the LTTE, and the death of her close friend, B, the Tribunal concluded it did not accept the Sri Lankan authorities imputed the applicant to be associated with the LTTE.[26] The Tribunal relied on the following matters.
a)The Tribunal did not accept the applicant’s participation in the Pongu festival, some ten years ago, and her attendance at the Vanni area would lead the authorities to impute her with an association with the LTTE. The Tribunal relied on country information for this conclusion.[27]
b)The Tribunal did not accept the LTTE’s use of the temple of which the applicant’s father was a priest gave rise to the Sri Lankan authorities imputing the applicant is associated with the LTTE. The Tribunal relied on the applicant’s father and brother currently residing in Sri Lanka, her brother’s holding a position as a priest at a Hindu temple, and there being no suggestion the father and brother are imputed with being associated with the LTTE.[28]
c)The Tribunal did not accept the applicant’s claim that when B died and her contact details were found on B’s mobile telephone “she was implicated in his death and detained and mistreated by the authorities”. The Tribunal did not accept the claim because B was a neighbour of the applicant’s family, and B’s and the applicant’s families were very close. In those circumstances, the Tribunal did not accept the applicant, but no other member of her family, would be scrutinised by the authorities.[29]
d)The Tribunal did not accept the applicant was detained and mistreated when in detention, and then subjected to weekly reporting arrangements. It did not do so because it was not satisfied the authorities had an adverse interest in the applicant.
e)The applicant travelled to India and returned to Sri Lanka on several separate occasions after her claimed detention without any apparent difficulties with the authorities. The Tribunal did not accept the applicant’s claims that she managed to exit and re-enter the airport through arrangements her agent made at the airport.[30]
[26] CB211, [65]
[27] CB211, [66]
[28] CB211, [67]
[29] CB211, [68]
[30] CB211, [69]
The Tribunal accepted the applicant would return to Sri Lanka as a failed asylum seeker, but it was not satisfied that would give rise to a real chance, or a real risk, that she would suffer serious or significant harm on her return to Sri Lanka.[31] The Tribunal did not accept the applicant’s evidence that her agent had taken her genuine passport. It found the applicant gave evasive and misleading evidence about her travel and use of passports.[32]
[31] CB212, [72]
[32] CB212, [74]
The Tribunal was satisfied the applicant was complicit in the use of a fraudulent Sri Lankan passport to enter Australia, that the applicant’s possession and entry into Australia on the basis of such passport may well be known by Sri Lankan authorities, that the applicant may have committed an offence under the Sri Lankan Immigration and Emigration Act of 1948 (IEA), and that, on her return to Sri Lanka, she may be charged under that Act.[33] The Tribunal, however, did not accept that the applicant would be jailed and then possibly be subjected to mistreatment while in jail. The Tribunal relied on country information that showed that in practice fines are imposed on persons who breach the IEA, with substantial penalties being reserved for agents and people smugglers who facilitate people smuggling.[34]
Ground 1 – failure to consider integer of claim based on brother-in-law being head priest of temple
[33] CB212, [75]-[76]
[34] CB212, [78]
The applicant submits the Tribunal failed to consider an integer of the applicant’s claims. The alleged integer is the applicant was or would be imputed with a political opinion supportive of the LTTE because the applicant’s brother-in-law was the head priest at a Hindu Temple in Colombo where a government minister was assassinated.
The applicant’s submission assumes the expression “integer of a claim” has a well-understood meaning, at least in the context of applications for review to the Tribunal; and that, if material before the Tribunal is properly characterised as an “integer of a claim”, the Tribunal must consider that material, failing which the Tribunal will make a jurisdictional error. These assumptions are correct.
The expression “integers [or integer] of a claim” often finds itself in the company of two other expressions with which it may be contrasted. These expressions are “claim”, on the one hand, and “evidence”, on the other. For example, in Htun v Minister for Immigration and Multicultural Affairs, Allsop J (as his Honour then was) said that the “claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend”, and that was “to be distinguished from errant fact finding”.[35] Another example is Tran v Minister for Immigration & Multicultural & Indigenous Affairs[36] where the Full Federal Court held the primary judge was correct to apply to a review by the Administrative Appeals Tribunal of a deportation order under s.200 of the Migration Act 1958 (Cth) Act (Act) the principle that the Tribunal “is required to deal with all integers of an applicant’s claim. It is not required to refer to every piece of evidence placed before it”.[37]
[35] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42]. I note the reference to Act is a reference to the Migration Act 1958 (Cth).
[36] [2004] FCAFC 297 (Kiefel, RD Nicholson, and Downes JJ)
[37] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [6] referring to the decision of Weinberg J at first instance in Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 509 at [28]
What distinguishes a “claim”, “integers [or integer] of a claim”, and “evidence” from each other? In any given case, a “claim” may be taken to denote all alleged facts on which an applicant relies for claiming he or she is entitled to a Protection visa (alleged facts). The expression “integers of a claim”, on the other hand, may be taken to denote those of the alleged facts which, if the Tribunal were satisfied exist, ought to lead the Tribunal to conclude the applicant has satisfied the criteria for the granting of a Protection visa prescribed by the Act (relevant alleged facts). They may be taken to be the equivalent of the “material questions of fact” referred to in s.430(1)(c) of the Act. The relevant alleged facts may or may not wholly coincide with the alleged facts. An “integer of a claim” denotes one meaningful subset of the relevant alleged facts which, in combination with one or more other meaningful subsets of the relevant alleged facts, ought to lead the Tribunal to conclude the applicant has satisfied the criteria for the granting of a Protection visa. One subset of relevant alleged facts may be taken to be the equivalent of a material question of fact within the meaning of s.430(1)(c) of the Act. Finally, “evidence” denotes the material, considered alone or in combination with other material, on the basis of which it is reasonably open to the Tribunal to be satisfied or not be satisfied that one or more relevant alleged fact exists.[38]
[38] See SZRBX & Anor v Minister for Immigration & Anor [2012] FMCA 1197 at [40] where Nicholls FM (as his Honour then was) said: “This issue can also be viewed through the prism of the distinction between evidence and claims. A claim is the expression of the fear of persecutory harm. Evidence is the basis on which such fear can be said to arise.”
None of the expressions “claim”, “integers [or integer] of a claim”, and “evidence” is mentioned in the provisions of the Act that prescribe the relevant criteria for the grant of a Protection visa. Their use, however, serve important purposes. One purpose is to provide a relatively well-defined vocabulary that directs attention to matters that are relevant to determining whether the Tribunal has discharged its obligation under s.414 of the Act to review the relevant decision. Take the words “claim” and “evidence”. They direct attention to all of the allegations of fact and the evidence – in short, all of the information – on which an applicant relies for the grant of a Protection visa. It is the duty of the Tribunal to consider all of this information. As I have noted elsewhere,[39] this requires the Tribunal to “view or contemplate attentively … examine … scrutinise … to fix the mind upon … [or] to reflect upon” such information for the purpose of identifying the “material questions of fact” or “integers of the claim”. In other words, the Tribunal is required to identify the facts asserted by the applicant or which are apparent from the information before it which, if accepted by the Tribunal, would satisfy the criteria specified in s.36(2)(a) or s.36(2)(aa) of the Act; and making findings on each material question of fact it has identified on the basis of evidence and other matters before it.
[39] SZTIF v Minister for Immigration & Anor [2014] FCCA 945 at [26]
Apart from directing attention to the need to identify among the alleged facts on which an applicant relies those that are legally relevant, the expression “integers of a claim” serves an additional purpose; it marks a boundary between matters that fall within the jurisdiction of the Tribunal, and matters that fall within the jurisdiction of a court exercising judicial review jurisdiction. It is for the Tribunal to determine whether it is satisfied the relevant alleged facts – that is, the integers of a claim – exist. It is for the court, however, to determine which of the alleged facts constitute integers of a claim. It is open to a court, at least when urged to do so – to enquire into whether the Tribunal has correctly identified which of the alleged facts constitute relevant facts – that is, integers of a claim – and to conclude the Tribunal has made a jurisdictional error to the extent it has failed to identify a relevant integer of a claim, or has incorrectly included as an integer an alleged fact which could not be regarded as an integer. That would be so because the Tribunal’s incorrectly including or excluding an alleged fact as an integer of a claim may indicate the Tribunal misunderstood the law, and hence, misunderstood the statutory duties it was required to discharge,[40] or may otherwise demonstrate the Tribunal proceeded under “a legally erroneous view as to what it was about which it needed to be satisfied”.[41]
[40] Ex parte Hebburn Ltd; Re Kearsley Shire Council; Ex parte J & A Brown & Abermain Seaham Collieries Ltd; Re Kearsley Shire Council [1947] NSWStRp 24; (1947) 47 SR (NSW) 416 at page 420
[41] Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [55];
There are two points to note about the distinctions I have identified above. The first is that, in most cases, justices of the Federal Court have used the expressions “claim” and “integers of a claim” as synonyms. That is the case in the passages from Htun and Tran I have quoted earlier in these reasons. Other examples include SHKB v Minister for Immigration & Multicultural & Indigenous Affairs, where Selway J said that a “distinction can be drawn between the claim made by the applicant and the applicant’s evidence in support of that claim”,[42] and Minister for Immigration and Citizenship v SZRKT, where Robertson J said “there is no clear distinction in each case between claims and evidence”.[43] This usage is natural where the allegations that constitute the claims and the integers of the claims – that is, the material questions of fact within the meaning of s.430(1)(c) of the Act – coincide. Where, however, not all of the alleged facts can properly be characterized as integers of the applicant’s claims, there is utility in distinguishing between “claims” and “integers of a claim”. The Tribunal remains obliged to consider all of the applicant’s claims – that is, all of the alleged facts on which the applicant relies – but only, in the first instance, for the purpose of determining whether they are of a character that, if the Tribunal were to be satisfied they exist, would result in the applicant satisfying one or more of the criteria for the grant of a Protection visa. If the Tribunal correctly concludes one or more of the alleged facts on which the applicant relies cannot properly be characterized as integers of a claim, it will make no jurisdictional error if it does not go on to determine whether it is satisfied those facts exist. The utility of the distinction between “claim” and “integers of a claim” may extend further. It may occur that the Tribunal fails to consider whether an alleged fact on which an applicant relies was an integer of the claims before it, and fails to consider whether it is satisfied the alleged fact exists. In that circumstance, it may be the Tribunal fails to discharge its statutory duties, but this failure may not result in a court intervening to set aside the decision, because the alleged fact the Tribunal failed to consider was not material to the satisfaction of the criteria for the granting of a Protection visa.
[42] [2004] FCA 545 at [24]
[43] [2013] FCA 317; (2013) 212 FCR 99 at [111]
The second point to make about the distinctions I have identified is that, as noted by Robertson J in the passage from SZRKT I have already quoted, there is no clear distinction between claims and evidence.[44] That, however, gives rise to no practical difficulty because, as Robertson J there said:[45]
The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself.
[44] “A distinction can be drawn between the claim made by the applicant and the applicant’s evidence in support of that claim. However, it is not a ‘bright line’ distinction. The distinction between evidence supporting a claim, and the claim itself is often difficult to draw even in the context of a judicial proceeding.” (SHKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 545 at [24])
[45] [2013] FCA 317 at [111]
I return, then, to the applicant’s submission that the Tribunal did not consider an integer of the applicant’s claims, the claimed integer being the applicant was or would be imputed with a political opinion supportive of the LTTE because the applicant’s brother-in-law was the head priest at a Hindu Temple in Colombo where a government minister was assassinated (Claimed Integer). The initial question is whether this constituted an integer of the applicant’s claims; and the consideration of that question may usefully be approached by first identifying the occasions on which the applicant articulated her claims for protection.
The first occasion is in the letter dated 1 March 20102 from the Legal Aid Commission of NSW Fairfield Legal Aid Office to the Department of Immigration and Citizenship (Department).[46] The letter stated the applicant feared she is at risk of harm from the Sri Lankan army and the EPDP due to her Tamil ethnicity, her religion as a Hindu, her membership of particular social groups, namely, young Tamil women and a family that has been linked to the LTTE, the imputing of political support for the LTTE “from her participation in Tamil dance and drama groups”, and her “suspected family links with the LTTE through a well known hindu [sic] temple where her father was the priest”.[47] The letter cannot reasonably be read as including the Claimed Integer.
[46] CB1-3
[47] CB3
The second occasion on which the applicant articulated her claims is in her statutory declaration.[48] The applicant said that at the time she was interrogated after B’s death, the CID said “they had information that our whole family was in the LTTE”.[49] The applicant further said the CID asked about a former government minister. The applicant said the government minister was a friend of the applicant’s father who visited the family very often. The applicant then added that the government minister was assassinated in a Hindu Temple in Colombo where the applicant’s brother-in-law was the chief priest.[50] The applicant said that her sister and brother-in-law had since travelled to Germany and are living there because they had been granted political asylum.[51]
[48] CB61-66
[49] CB63-64, [23]
[50] CB64, [24]
[51] CB64, [24]
The third occasion on which the applicant articulated her claims is in a letter dated 13 May 2014 from the applicant’s legal representative to the Tribunal.[52] The representative stated the applicant’s claims based on well-founded fear of persecution to be as follows (emphasis added):[53]
The applicant has expressed her claims in her detailed statutory declaration provided to DIBP. In short, the main facts, inter alia, are that her friend, [B], was arrested following the abduction and murder of the son of a prominent businessman in March 2010. [B] was subsequently detained, accused of involvement with the Liberation Tigers of Tamil Eelam (‘LTTE’), and released on reporting conditions. Approximately one year later, his body was found hanging in a temple near [C]. Two days later, the applicant was detained by the Sri Lanka Army (‘SLA’) because her number was found stored on [B’s] mobile phone. The applicant was interrogated about [B], who authorities stated was in the LTTE. The authorities told her that they had information that her whole family were in the LTTE. She was imputed with support for the LTTE because a former [government minister] had been assassinated at a Hindu temple in Colombo, where her sister’s husband was the Chief Priest (both of whom now live in asylum in Germany).
[52] CB141-191
[53] CB142-143. The claim is repeated at CB161
The emphasised portion of this passage from the applicant’s legal representative makes it clear the applicant did advance a claim based on her brother-in-law being the head priest of a temple where a former government minister was assassinated; but what was the claim? On a fair reading of the passage, the claim was that those who interrogated the applicant imputed to the applicant support for the LTTE because a former government minister had been assassinated at the temple of which the applicant’s brother-in-law was the head priest. From the fact the applicant alleged she had been imputed with a pro-LTTE political opinion because a former government minister had been assassinated at the temple of which the applicant’s brother-in-law was the head priest, it follows the applicant also claimed that she would be imputed with a pro-LTTE opinion for that reason. It also follows, therefore, that the applicant did make a claim in terms of the Claimed Integer.
Counsel for the first respondent (Minister) did not submit the applicant did not advance a claim in the terms of the Claimed Integer.[54] Instead, counsel submitted the Claimed Integer formed a relatively minor part of the applicant’s overall case which the Tribunal implicitly considered and rejected. There are two elements to the Minister’s submissions. The first is the Tribunal’s rejection of the applicant’s evidence that she was detained and interrogated. That necessarily meant the Tribunal rejected the applicant’s evidence that she was asked about the government minister. That, in turn, removed a significant factual component of the Claimed Integer, namely, that the applicant was asked about the government minister because the former government minister was assassinated at the temple of which the applicant’s brother-in-law was the head priest. The second element of the Minister’s submissions is that the remaining alleged fact that comprised the Claimed Integer – the former government minister was assassinated at the temple of which the applicant’s brother-in-law was the head priest – was incapable of reasonably giving rise to any integer of a claim which the Tribunal was required to consider. In that regard, counsel for the Minister relied on neither the applicant nor her legal representative putting arguments or pointing to material that could reasonably have indicated that the applicant intended to claim that the former government minister’s having been assassinated at the temple of which the applicant’s brother-in-law was the head priest, gave rise to a well-founded fear that the applicant would be imputed with a pro-LTTE political opinion.
[54] First Respondent’s Written Submissions, 19.05.2015, [5]
I accept the Minister’s submissions. The essential elements of the Claimed Integer included the alleged facts that: (a) the applicant was detained and interrogated during the course of which she was asked about the government minister; (b) the applicant was asked about the government minister because the Sri Lankan authorities imputed to the applicant a pro-LTTE political opinion; and (c) the Sri Lankan authorities imputed to the applicant such opinion because the government minister had been assassinated at a temple of which the applicant’s brother-in-law was the head priest. Once the Tribunal rejected these essential elements of the Claimed Integer, there was nothing in the remaining element of the claimed integer, namely, that the government minister was assassinated at the temple of which the applicant’s brother-in-law was the head priest, that could reasonably have been considered by the Tribunal as constituting an integer of a claim based on the applicants being imputed with a pro-LTTE opinion.
Ground 1, therefore, fails.
Ground 2 – failure to consider integer of claim based on visit to LTTE camp
The applicant contends the Tribunal failed to consider another integer of her claims, namely, that in 2005 she participated in a tour to Vanni, an LTTE-controlled area, during which she visited an LTTE camp where the LTTE trained young cadres. The tour was organised by a private tuition institution. The Tribunal recorded in its reasons this part of the applicant’s claims,[55] but the Tribunal, the applicant submits, appears to have associated that visit with another part of the applicant’s claims, namely, the applicant’s having performed at the Pongu festival.
[55] CB204, [41]
Counsel for the Minister does not dispute the Tribunal did not specifically consider whether the applicant’s participation in the tour gave rise to a well-founded fear of persecution. Instead, counsel submits that this aspect of the applicant’s claims did not disclose any “substantial, clearly articulated claim relying upon established facts”, or an unarticulated claim that nonetheless clearly arose on the material within the principles stated in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)[56] and SZSHK v Minister for Immigration and Border Protection.[57] Counsel in part relied on the applicant’s not having suggested that the Sri Lankan authorities were aware she toured Vanni, or that this was a basis for her being imputed with a pro-LTTE political opinion.[58] Counsel for the Minister also relies on the responses the applicant gave to questions asked of her by the Tribunal. Counsel submits that, although the applicant gave her participating in the Pongu festival as a reason for her fearing she will be imputed with a pro-LTTE political opinion, she made no such claim in relation to her attending the LTTE camp.
[56] [2004] FCAFC 263; (2004) 144 FCR 1 at [68]
[57] SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [37]
[58] First Respondent’s Written Submissions, 19.05.2015, [6]
I do not accept the Minister’s submissions. I find the applicant did refer to her attending the LTTE camp at Vanni as a reason for her fearing she will be imputed with a pro-LTTE political opinion. I base my finding on the following passage from the Tribunal’s reasons for decision (emphasis added):[59]
When asked why she felt the need to get away from Sri Lanka she stated that she is a Tamil and suspected of being associated with the LTTE. She stated she had been arrested and mistreated whilst in detention and that she was fearful. Asked why she would be suspected to have links to the LTTE she stated because she had performed in the Pongu ceremony for the LTTE and because of [a] friend of hers had been killed and that this person had a suspected association with the LTTE and her phone number was located on his mobile phone and she was then called in for questioning to ask about her association with LTTE.
She also stated she had at a point in time in 2005 performed in Vanni and had been taken to an LTTE camp and invited to train there but stated she was too scared to do this.
[59] CB204, [40]-[41]
This passage indicates the applicant did specifically refer to her performing in Vanni and attending the LTTE camp as a reason for her fearing she will be suspected of links with the LTTE.
The applicant’s allegation that she toured Vanni and the LTTE camp in 2005, which the Tribunal did not consider, formed a distinct integer of her claims that was separate from the applicant’s allegation that she participated in the Pongu festival. The determination of this part of the applicant’s claims required the Tribunal to consider matters that were distinct from the matters the Tribunal considered and on which it relied in determining the applicant’s claims based on the applicant’s attending the Pongu festival. Of particular relevance is the country information on which the Tribunal relied for not accepting the applicant’s claims based on her participating in the Pongu festival, namely, the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (UNHCR report).[60]
[60] CB207, [59]
That report stated that a person’s originating from an area that was previously controlled by the LTTE “does not in itself result in a need for international refugee protection”.[61] The UNHCR report, however, also stated that “previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to international refugee protection, depending on the specifics of the individual case”.[62] The applicant’s allegation that she toured Vanni, an LTTE-controlled area, in the course of which she visited an LTTE training camp, could reasonably have been considered by the Tribunal to amount to more than an allegation the applicant had originated from an LTTE-controlled area. At the very least, had the Tribunal considered the applicant’s allegation that she toured an LTTE camp in an LTTE-controlled area, the Tribunal would have had to consider whether the allegation was true. If true, the Tribunal would have had to consider whether that amounted to more than a claim that the applicant originated from an LTTE-controlled area; and, if so, whether, having regard to the applicant’s particular circumstances, the applicant established she had a well-founded fear of being imputed with pro-LTTE political opinion. The Tribunal did not consider these questions.
[61] CB207, [59]
[62] CB207, [59
In my opinion, the allegation the applicant toured Vanni, an LTTE-controlled area, in the course of which she visited an LTTE training camp, was a distinct integer of the applicant’s claims which the Tribunal did not consider. The applicant, therefore, succeeds on ground 2 of her amended grounds of application.
Ground 3 – failure to taken into account Ministerial Direction 56
In this ground, the applicant claims the Tribunal failed to comply with Ministerial Direction No 56 issued under s.499 of the Act. The applicant concedes, however, that the decision of Perram J in SZTMD v Minister for Immigration and Border Protection is against the applicant succeeding on this ground, and this Court is bound by his Honour’s decision.[63] I need only record here that the applicant respectfully submits that the decision in SZTMD is wrong.[64] I also should record that the Minister submits the Tribunal did comply with Ministerial Direction No 56, even if it be assumed SZTMD was wrongly decided. In any event, given the applicant’s concession, ground 3 fails.
Ground 5 – failure to consider claim based on membership of social group[65]
[63] [2015] FCA 150
[64] Applicant’s Written Submissions, 12.05.15, [24]
[65] Ground 4 contained in the application as originally filed was removed.
This grounds relates to the following part of the Tribunal’s reasons for decision:[66]
[T]he Tribunal does not accept that simply being a Tamil or a young female Tamil gives rise to a well-founded fear of persecution from the authorities in Sri Lanka. The Tribunal makes this finding on the basis of the country information from UNHCR set out above at paragraph 59 which indicates that merely coming from a particular region or of a particular ethnicity does not of itself, without a particular additional profile factor, give rise to a well-founded fear of harm on return to Sri Lanka.
[66] CB210, [64]
The applicant submits that, although the Tribunal referred to the applicant’s claim based on her being a member of a particular social group, namely, young Tamil women, and the Tribunal rejected that claim, it did not in fact consider that claim or, if it did, the Tribunal’s reasons “disclose no process of weighing evidence and preferring some over the other”.[67] The basis of this submission is that the country information on which the Tribunal said it relied in dismissing this part of the applicant’s claims did not refer to the position of young Tamil women in Sri Lanka; yet the Tribunal did not refer to country information that was before it and on which the applicant relied that did specifically deal with the position of young Tamil women.[68]
[67] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [50] (Kenny, Griffiths and Mortimer JJ)
[68] The country information is at CB162-163
Counsel for the Minister accepts the applicant did “briefly” make a claim based on her membership of a particular social group, namely, young Tamil women,[69] but submits the Tribunal’s rejection of the applicant’s claim that the Sri Lankan authorities had detained her removed any basis for the Tribunal finding the applicant may be detained and sexually mistreated in the future. The Minister further submits there was no substantial, clearly articulated argument that the applicant feared harm as a young Tamil woman on any other basis.
[69] First Respondent’s Written Submissions, 19.05.2015, [8]. Reference is made to CB3 and CB144.
I do not accept the Minister’s submissions. The letter dated 1 March 2012 from the Legal Aid Commission of NSW Fairfield Legal Aid Office to the Department included as one of the applicant’s claims her “membership of a particular social group of young Tamil women”.[70] In his letter to the Tribunal dated 13 May 2014, the applicant’s legal representative also identified as one of the applicant’s claims her being “a member of the particular social group of ‘young Tamil women’ and ‘the family’”.[71] The legal representative expressly referred to a number of items of country information in support of the applicant’s claims. Some of the items of country information to which the representative referred related to Tamil women who had been detained;[72] but other items were not so restricted. These items were:
a)A report from the United States Department of State titled “2013 Country Reports on Human Rights Practices – Sri Lanka” dated 27 February 2014 which reported there were “a number of credible reports of sexual violence against women in which the alleged perpetrators were armed forces personnel, police officers, army deserters, or members of militant groups”.[73]
b)A report by Minority Rights Group International titled “State of the World’s Minorities and Indigenous Peoples 2013 – Sri Lanka” dated 24 September 2013 which reported that Tamil women in the country’s north are especially vulnerable to the situation described in that part of the report, and that in March 2012 the regional directors of Jaffna Hospital reported 56 cases of rape and severe violence against women and girl children.[74]
c)A report by Minority Rights Group International titled “Living with insecurity: Marginalization and sexual violence against women in north and east Sri Lanka” dated 16 October 2013 which reported “cases of rape, sexual abuse and harassment of Tamil women by members of the armed forces”.[75]
[70] CB3
[71] CB144
[72] CB162-CB163
[73] CB163
[74] CB163
[75] CB164
The Tribunal did not expressly refer to this country information. There are two possible inferences that may be drawn from this. The first is that the Tribunal overlooked or ignored the country information; the second is that it did not overlook or ignore the information, but, instead rejected it. In my opinion, the more likely inference is, and I find that, the Tribunal overlooked the country information. That, in my opinion, constituted jurisdictional error. Although the country information could not reasonably be characterised as a separate integer, it was important material in the sense identified by Robertson J in SZKRT in the passage from his Honour’s judgment I reproduced in paragraph 22 of these reasons. That is, it was material which, if the Tribunal accepted it, could have led the Tribunal to uphold the applicant’s claims based on her being a member of a particular social group, namely, young Tamil women. By not having considered the country information, the Tribunal did not fully discharge its duty to review the applicant’s claims.
Ground 5 of the amended grounds of application, therefore, is made out.
Disposition
I propose to order that the Tribunal’s decision be quashed, the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent, and that the Administrative Appeals Tribunal consider the applicant’s claims for review according to law.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 22 July 2016
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