SZURK v Minister for Immigration
[2015] FCCA 472
•29 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZURK v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 472 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka, including as an elderly, physically disabled woman without familial support – failure by the Tribunal to deal with the claim under the complementary protection criterion – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 417, 477 |
| NAHI v Minister for Immigration [2004] FCAFC 10 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZURK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1914 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Solicitors for the Respondents: | Mr M Alderton of Mills Oakley |
ORDERS
A writ of certiorari shall issue removing the record of the Tribunal decision made on 24 April 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1914 of 2014
| SZURK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant is an elderly Tamil woman from Sri Lanka. She has lost her sight in one eye as a result of an injury sustained during the course of the Sri Lankan civil war. She was dependent in Sri Lanka upon her husband who is now deceased. She claims to have no close family remaining in Sri Lanka. She applies to this Court for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 24 April 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka who applied for a protection (Class XA) visa on 22 May 2013[1]. The applicant’s solicitor in these proceedings assisted her in preparing her visa application[2] and that application was lodged well after the complementary protection provisions in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act) commenced on 24 March 2012.
[1] Court Book (CB) 1-27
[2] CB 45-47
The applicant claimed to fear harm in Sri Lanka as an ethnic Tamil and imputed Liberation Tigers of Tamil Eelam (LTTE) sympathiser. She also feared extortion demands and living alone as a widow. Her written claims were outlined in a statement filed with her visa application[3]. In support of her claims, the applicant provided the Minister’s Department with copies of pages from her passport[4], birth certificate and identity document[5] and numerous internet articles on the general situation of Tamils in Sri Lanka[6].
[3] CB 28-44
[4] CB 48-51
[5] CB 52-53
[6] CB 54-81
By way of statement attached to the application, the applicant led evidence regarding her claim to face harm arising from her experiences living as a Tamil during the Sri Lankan Civil War. She claimed[7]:
a)living in Jaffna, she experienced harassment by the Sri Lankan Army[8];
b)during the war, she lost an eye when her home was attacked[9]. She subsequently fled to Vanni[10];
c)in January 2011, her husband was arrested and subsequently was the victim of extortion[11];
d)the applicant’s family were targeted for extortion and interrogation by the Criminal Investigation Department (CID)[12];
e)the applicant was detained in a camp by paramilitary groups and tortured[13];
[7] The applicant’s account is as contained at CB 39-43
[8] CB 39
[9] CB 39-40
[10] CB 40
[11] CB 41
[12] CB 41
[13] CB 42
In January 2013, the applicant’s husband died of a heart attack. The applicant had to bribe her way out of a camp to attend the funeral. Upon being alerted to further inquiries by paramilitary groups, the applicant fled to Australia[14].
[14] CB 43
On 4 October 2013, the applicant was invited to attend an interview with a delegate of the Minister[15], which she attended on 14 October 2013[16]. On 17 October 2013, the delegate refused to grant the applicant a protection visa[17]. The delegate was not satisfied that the applicant was of any interest to the Sri Lankan authorities or paramilitary groups when she departed Sri Lanka and found she would be of no ongoing interest if she returned. The delegate was also not satisfied that she would face any harm as a single woman without family in Sri Lanka[18].
[15] Supplementary Court Book 1-3
[16] CB 89.4
[17] CB 86-89
[18] CB 96.3, CB 98.2
The Tribunal’s decision
On 11 November 2013, the applicant lodged an application for review of the delegate’s decision[19]. She did not appoint an authorised recipient to assist her before the Tribunal[20] but did attend the Tribunal hearing held on 23 April 2014[21]. She provided copies of pages from her passport at the hearing[22] but provided no further supporting documentation to the Tribunal[23].
[19] CB 100-105
[20] CB 102.3
[21] CB 112-113
[22] CB 114-118
[23] CB 130 [66]
In its decision, the Tribunal accepted the applicant’s claims that:
a)she was a long-standing resident of a Tamil neighbourhood in Colombo until 2013, was widowed in 2013 and had two sisters in either Jaffna or possibly India[24];
b)a son of one of her sister’s was involved with the LTTE and was killed in or around 2008[25];
c)prior to October 2012 she was never harmed or harassed in Colombo due to this family connection, she settled in Colombo with her husband and children to distance themselves from this family connection, her husband retired in or around 2011 and received a government employee pension[26];
d)she attempted to settle with her husband in Jaffna in 2011 and her husband was interrogated and detained by the Sri Lankan Army[27]; and
e)Tamil paramilitary groups were involved in extortion activities in Colombo in 2010 and possibly into 2012[28].
[24] CB 127 [43]-[44]
[25] CB 127 [45]
[26] CB 127 [47]
[27] CB 127 [48]
[28] CB 128 [51]
However, the Tribunal identified inconsistencies in the applicant’s written statement and her oral evidence[29] and found other claims were illogical[30] or “difficult to believe”[31]. For example, in her written statement she claimed she was taken to “CID headquarters” in Colombo[32] but in her oral evidence she told the Tribunal she had no idea where she was taken[33]. The Tribunal also had difficulty believing the applicant’s evidence that whilst she was detained in Boosa camp in November 2012, her husband was able to get her passport renewed by using a form that she had signed over a year earlier[34].
[29] CB 128 [52]-[55]
[30] CB 128 [56]
[31] CB 129 [57]
[32] See: CB 41.9
[33] CB 128 [54]
[34] CB 125 [33]; CB 129 [57]
Given the identified deficiencies in her evidence, the Tribunal was not satisfied that:
a)the applicant was targeted by the CID or Tamil paramilitaries, was detained at Boosa in October 2012 or had to make payments to a member of a paramilitary group to be released[35], and
b)the applicant was suspected by the authorities or by any paramilitary groups of having supported the LTTE at any time[36] or that there was any record of this if she returned[37].
[35] CB 128-129 [51], [58]
[36] CB 129 [59]
[37] CB 129 [60]
The Tribunal accepted that the applicant might face some personal hardship as a widow if she returned to Colombo. However, as the Tribunal had rejected her claim that she was detained in Boosa it did not accept that she would be refused help from her friends in Sri Lanka. It also found she would have a source of income from her late husband’s pension and would live in a predominantly Tamil neighbourhood in Colombo as she had done for many years[38].
[38] CB 129 [61]-[62]
In considering the applicant’s claim to fear harm as a Tamil woman or a woman without male protection[39], the Tribunal:
a)cited a Department of Foreign Affairs and Trade report about the treatment of women but noted the report did not refer to “any specific problems” for women, Tamil women or women without male protection in Colombo[40];
b)cited a 2012 UNHCR report that indicated “women in certain circumstances” may need international protection but was satisfied that none of the relevant circumstances applied to the applicant[41];
c)noted that none of the reports provided by the applicant about Tamils in 2012 referred to Tamil women in Colombo being harmed[42];
d)was only able to locate limited information regarding the treatment of Tamil women in Colombo as the reports focussed on young Tamil males or Tamil residents generally[43];
e)noted that a 2010 UNHCR report had observed that women with Vanni national identity cards were being targeted for harassment at army checkpoints in Colombo but other country reports indicated that the number of checkpoints had decreased in mid-2010 and decreased further in 2011[44];
f)noted that although there were reports that police registration projects targeted Tamil areas in Colombo, a UK Home office report indicated that police registration had ceased altogether in Colombo by 2012 and the Tribunal was satisfied that the applicant would not even be required to register with the authorities if she returned to Colombo[45]; and
g)accepted there were reports of abductions by unidentified men across the country but found reports from 2012 did not refer to harassment, extortion attempts or abductions of Tamil women with or without male protection in Colombo[46].
[39] CB 129 [63]
[40] CB 129 [64]
[41] CB 130 [65]
[42] CB 130 [66]
[43] CB 130 [67]
[44] CB 130 [68]
[45] CB 130 [69]
[46] CB 130 [70]
For these reasons, the Tribunal found that the applicant only faced a “remote” chance of persecution for the reason of her membership of a particular social group such as Tamil women or women without male protection[47].
[47] CB 131 [71]
The Tribunal found that the applicant, as a Tamil woman who was a long term resident of Colombo and who had left the country legally, would not be imputed with a pro-LTTE political opinion if she returned to Sri Lanka because:
a)she departed Sri Lanka legally and openly in 2013 using her own passport;
b)she was found to be of no interest to the authorities or paramilitaries and was not suspected of any connection with the LTTE when she left, and
c)a 2011 Minority Rights Group report indicated that many Tamils in Colombo had been successful in business and other professions and did not share views expressed by Tamils from conflict areas in the north[48].
[48] CB 131 [72]
The Tribunal found that the applicant did not have a well-founded fear of harm for reason of her political opinion or any other Convention reason[49].
[49] CB 131 [73]
The Tribunal cited the test for complementary protection and found that Sri Lanka was the relevant “receiving country”[50]. For the same reasons that it found she did not face a real chance of being harmed, the Tribunal also found there were no substantial grounds for believing that the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of her being removed to Sri Lanka and that she did not meet the complementary protection criterion[51].
[50] CB 131 [74]
[51] CB 131 [75]-[76]
At the applicant’s request, the Tribunal referred her case for Ministerial Intervention under s.417 of the Migration Act[52] and also addressed the ministerial guidelines in PAM 3[53]. The Tribunal concluded that the applicant did not satisfy the criterion for the grant of a protection visa under s.36(2)(a) or the alternative criterion in s.36(2)(aa) of the Migration Act[54], and set out the relevant law[55].
[52] CB 131 [77]
[53] CB 131 [78]
[54] CB 131-132 [79]-[80]
[55] CB 133-135 [84]-[95]
The judicial review application
These proceedings began with a judicial review application filed on 10 July 2014. The applicant continues to rely upon that application. There is one ground in that application which attacks the complementary protection assessment by the Tribunal:
1. The RRT has failed to apply the correct test pursuant to section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
a. At paragraph [75] of the Findings and Reasons, the Tribunal held that the Applicant would not face a real risk of significant harm as per section 36(2)(aa) for “the same reasons” it had found that there was no real chance the Applicant would be harmed under section 36(2)(aa);
b. At paragraph [70] the Tribunal had disregarded “reports of abductions by unidentified men across the country” only by reference to the lack of a Refugee Convention-related nexus – namely Tamil women;
c. This finding was “bound up” in the statutory formula pursuant to section 36(2)(a) and is not dispositive of the claim under section 36(2)(aa) of the Act.
The applicant required an extension of time as she had filed her application outside the period prescribed in s.477(1) of the Migration Act. I granted that extension at the trial of this matter on 3 March 2015, pursuant to s.477(2) of the Migration Act. I took into account, in particular, that the Tribunal had referred the applicant’s case to the Minister on humanitarian grounds[56]:
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant says that because she has lost her sight in one eye she was reliant on her husband, who has now passed away, in Sri Lanka. She says she has no other relatives in Colombo, and that her sisters may have left the country. She says that her adult daughter is an Australian citizen and the applicant lives with her daughter’s family. The applicant’s daughter indicated at the [T]ribunal hearing that she was greatly concerned about her mother’s welfare.
[56] CB 131 [77]
In my opinion, where an applicant requests referral of a case to the Minister on humanitarian grounds, prior to a decision of the Tribunal, and the Tribunal acts on that request, it cannot be said that the applicant has elected not to pursue judicial review. That is because, at the time of the request, the Tribunal had not made its decision. I also took into account that the applicant had acted promptly once the request for Ministerial intervention had been declined and that the ground of review raised in the judicial review application was arguable.
In addition to the court book filed on 30 July 2014, I received into evidence an affidavit by the applicant filed on 8 August 2014 and an affidavit by Proteek Roy Chowdhury made on 22 September 2014, to which is annexed a transcript of the hearing before the Tribunal on 23 April 2014.
The applicant and the Minister made both oral and written submissions.
Consideration
The applicant contends that the Tribunal fell into error by intermingling Refugee Convention considerations in its complementary protection assessment. At [70]-[71][57] the Tribunal said in relation to the applicant’s claim to be a refugee:
Although there were reports of abductions by unidentified men across the country, reports from 2012 do not refer to harassment, extortion attempts or abductions of Tamil women, with or without male protection, in Colombo.
For these reasons I consider the chance remote that the applicant will be persecuted in Sri Lanka for the reason of her membership of a particular social group such as Tamil women or women without male protection.
[57] CB 130-131
Turning to the complementary protection criterion, the Tribunal said at [74]-[75] of its reasons[58]:
The Complementary Protection criterion requires that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm. I am satisfied that Sri Lanka is the relevant “receiving country” in this case.
The applicant does not claim to fear being harmed in Sri Lanka for any reasons other than those considered above. For the reasons that I have found there is not real chance she will be harmed for those reasons, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed to Sri Lanka there is a real risk she will suffer significant harm.
[58] CB 131
The applicant concedes that she did not specifically raise complementary protection claims before the Tribunal. She contends, however, that a claim did squarely arise from the material that required consideration separately from the assessment of the refugee criterion. In particular:
a)the applicant was unrepresented during the hearing;
b)during the hearing, the applicant stated:
i)that she did not want to return to Sri Lanka because she would be alone[59];
ii)that it was in evidence that her husband had died of a heart attack and she was without the support of her children;
iii)that she had received threats of extortion from a paramilitary man[60];
iv)that she has health issues – which include the loss of her eye[61].
c)that a fair reading of the factual claims is demonstrative of the proposition that the claims were raised under both the Refugee Convention and the complementary protection criteria;
d)that a fair reading of the exchanges with the Tribunal do not admit the inference that the factual propositions put in regards to the generic claim were abandoned in regards to the complementary protection claim.
[59] Transcript (T)35.613
[60] T35.615
[61] T35.617
The applicant submits that the obligations under the complementary protection criterion to assess the evidence are not limited and confined to claims raised specifically under the s.36(2)(aa):
a)as stated by Selway J in SGBB v Minister for Immigration[62], this would be tantamount to “requiring an application to be treated as an exercise in 19th century pleading”;
b)it is noted that the applicant appeared to have been unrepresented during the hearing;
c)it is noted that it was not challenged during the hearing that the applicant was a vulnerable person.
[62] (2003) 199 ALR 364 at [17]
Extensive reports had been forwarded on behalf of the applicant of abductions of women in Sri Lanka[63].
[63] CB 28-39
The present application turns therefore on the following in the applicant’s submission:
a)the Tribunal has, at [70][64], dealt with the discrete issue of whether the applicant would face harm as a result of her social group of being a Tamil woman “with or without male protection”;
b)the finding is therefore “bound up” in the Refugee Convention-related nexus;
c)the findings at [70] are not dispositive of the applicant’s claims under complementary protection;
d)in respect of the complementary protection assessment, the Tribunal may take into account factors such as the applicant’s health (including her disability and social isolation) in assessing whether the applicant would face a real risk of significant harm;
e)these “individual factors” were expressly articulated during the hearing and only dealt with in respect of the applicant’s claims under the s.417 referral made by the Tribunal, yet were not dealt with in respect of the applicant’s claims under the complementary protection criterion;
f)At [75] of the decision, the Tribunal stated:
The applicant does not claim to fear being harmed in Sri Lanka for any reasons other than those considered above. For the reasons that I have found there is no chance she will be harmed for those reasons, I find that there are no substantial grounds for believing that as a necessary and foreseeable consequence of her being removed to Sri Lanka there is a real risk she will suffer significant harm
[64] CB 130
The Minister contends that the applicant misconceives the Tribunal’s findings and reasons. The Minister notes that the Tribunal cited (at footnotes 14-17 of its decision record) several country reports on Sri Lanka in connection with its finding at [70].
The Tribunal’s finding in [70] was made in the context of addressing the applicant’s claims to fear harm in Sri Lanka as a Tamil woman or a woman without male protection[65]. It is important to appreciate the scope of that claim as it was advanced by (or on behalf of) the applicant.
[65] CB 129-130 [63]-[71]
The applicant claimed in her written statement that she was a Tamil[66], her husband had died, she had no direct family members living in Sri Lanka and it was dangerous for her to return[67]. The Tribunal expressly noted this[68].
[66] CB 39.7
[67] CB 43.3
[68] at CB 129 [61], [63]
Before the delegate, the applicant confirmed that she feared unidentified “boys” who would ask her for money[69]. The delegate considered these claims in the context of whether the applicant faced harm in Sri Lanka as a single woman but found she did not fit either of the categories of women with risk profiles recognised by the 2012 UNHCR Eligibility Guidelines and could obtain effective protection from the Sri Lankan authorities.
[69] CB 95.4
The Tribunal’s analysis of the applicant’s claims to fear harm in Sri Lanka as a Tamil woman or a woman without male protection is as I have outlined.
The Minister submits that, contrary to particular b. of the ground of review, the Tribunal did not disregard “reports of abductions by unidentified men across the country” only by reference to the lack of a Refugee Convention-related nexus namely, Tamil women. Nor does the Tribunal’s finding at [70] refer to, or rely upon, any “lack of a Refugee Convention-related nexus”. All the Tribunal did was to note the absence of support in the available independent country reports for the applicant’s actual claim to fear harm (such as harassment, extortion or abduction) because she was a Tamil woman or lacked male protection in Colombo. This construction is consistent with the Tribunal’s analysis of the country information at [64] and [65] of its decision.
Put simply, the Tribunal noted the lack of support in the available independent information for the applicant’s claim relevant to her actual circumstances. The finding is therefore not “bound up” in Refugee Convention-related reasoning.
The applicant submits further[70] that extensive reports of abductions of women in Sri Lanka were forwarded on her behalf but that submission lacks a proper factual basis. The material at CB 28-39 overwhelmingly concerns reports of human rights abuses, torture, killings, sexual violence and rape of Tamils in Sri Lanka. There is only one reference to abductions[71] and this concerned Tamils suspected of supporting the LTTE. This is consistent with the independent information cited by the Tribunal at [50][72] and accurately reflects the Tribunal’s assessment of the reports the applicant had provided to the Department[73].
[70] at [17] of her written submissions
[71] at CB 33.6
[72] CB 128
[73] CB 130 [66]
The Minister submits that an absence of support for the applicant’s claims in the available country information was a cogent reason for the Tribunal to not be satisfied that she faced a real chance of harm for the reasons she advanced. The question of the accuracy of country information is one for the Tribunal, not for the Court. Both the choice and the assessment of the weight of such material are matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal[74].
[74] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
The Minister further submits that, as to the specific criticism made by the applicant of the Tribunal’s reasons at [75], read in context and in compliance with the High Court’s caution in Minister for Immigration v Wu Shan Liang[75], the Tribunal did not then erroneously apply reasoning exclusive to a consideration of s.36(2)(a) when addressing the statutory question posed by s.36(2)(aa) of the Migration Act.
[75] (1996) 185 CLR 259 at 272
The Minister concludes that, critically, there is no jurisdictional error in the Tribunal referring to its previous findings of fact in relation to an applicant’s refugee claims when assessing claims under the complementary protection provisions[76]. This is not a case where the earlier refugee claims were rejected by the Tribunal on the basis that they lacked a Convention nexus, the harm feared by the applicant did not amount to “serious harm” or the applicant did not have a subjective fear of harm[77]. On a fair reading of [70], the Tribunal’s finding that the applicant’s claim lacked support in the available country information is not exclusively Refugee Convention-related reasoning.
[76] SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; MZYXS v Minister for Immigration [2013] FCA 614 at [31]
[77] SZSFK v Minister for Immigration & Anor [2013] FCCA 7 at [90]-[98]
Resolution (a claim overlooked)
As is noted in the Minister’s submissions, the applicant’s written submissions[78] advance a further ground of review. This further ground suggests that in assessing whether the applicant met the complementary protection criterion, the Tribunal failed to deal with (what is variously described as) “claims” or “factual propositions put in regards to the generic claim”.
[78] at [13]-[16]
As the applicant correctly concedes[79], she did not expressly articulate any specific complementary protection claims. This is in the context of the applicant having the benefit of legal representation[80] in preparing her protection visa application[81] and providing an extensive submission to the Minister’s Department, which outlined her claims of harm in Sri Lanka[82], although she was not represented before the Tribunal.
[79] at [15] of her submissions
[80] CB 45-47
[81] CB 1-27
[82] CB 28-44
I accept that it is not correct to contend that merely because material is put as giving rise to a claim on Refugee Convention grounds it automatically follows that the claim is required to be considered as a claim for complementary protection[83].
[83] SZSHK v Minister for Immigration (2013) 138 ALD 26 at [37]
I also accept that, although the applicant was not legally represented at the Tribunal hearing, the transcript reveals that the Tribunal explained to her that she could obtain a protection visa on the basis of the refugee and complementary protection criteria[84]. The Tribunal discussed with the applicant the claims that she advanced and the applicant confirmed with the Tribunal towards the end of the hearing that there were no other reasons apart from those already given for her to fear returning to Sri Lanka[85].
[84] T.2-3.22-38
[85] CB 127 [42] T38-39.654-658
I accept further, that the Tribunal considered the applicant’s claim and evidence that she received extortion demands from a paramilitary man in October 2012 and feared they might come again[86]. However, the Tribunal at the hearing expressed doubts about this claim[87] and ultimately rejected it on the basis of adverse credibility findings[88].
[86] CB 123 [15]-[16]; CB 124 [19]; CB 125 [27]-[30]; CB 126 [40]; CB 127-128 [49]-[50]
[87] CB 126 [41]
[88] CB 128-129 [51]-[60]
Finally, I accept that the Tribunal also considered the applicant’s claims that she was a widow and would be alone in Sri Lanka[89] and had lost her right eye and had high blood pressure[90]. Whilst it accepted that she might face personal hardship it also found that she would not be refused help from her friends as she had claimed, she would be able to obtain her late husband’s pension and would live in a predominantly Tamil neighbourhood in Colombo as she had done for many years[91].
[89] CB 122 [4]; CB 124 [22]; CB 127 [42]
[90] CB 123 [13]; CB 124 [22]
[91] CB 127 [47]; CB 129 [61]-[62]
In my opinion, there is nevertheless a distinction, albeit fine, between the Tribunal’s rejection of the applicant’s particular social group claim and the obligation on the Tribunal to consider whether the applicant faced a real risk of significant harm because of opportunistic crime in Sri Lanka. This would have required consideration by the Tribunal of whether the applicant, as an elderly disabled woman without family support, was at greater risk of significant harm than the population of Sri Lanka generally[92]. The Tribunal did not make that assessment and it cannot be implied, simply based upon the consideration of the applicant’s particular social group claim.
[92] see s.36(2B)(c)
The applicant’s circumstances, because of her age, her disability and her lack of family support, were raised repeatedly at the hearing before the Tribunal[93]. Her circumstances stimulated the Tribunal to refer the applicant’s case to the Minister for consideration on humanitarian grounds. The Tribunal had accepted that there was criminal extortion activity in Colombo. In the circumstances, in my opinion, the claim squarely arose on the material. In my opinion, the Tribunal fell into error, probably because it was distracted by the applicant’s request for humanitarian consideration. Having disposed of the applicant’s claim for protection as a refugee, and having referred the case to the Minister on humanitarian grounds, the Tribunal considered that it had completed its task on the review. It had not. As I have said, it remained to consider whether the applicant faced a real chance of significant harm from lawless elements because of her age, disability and lack of familial support that may have placed her at a greater risk than the Sri Lankan community generally. There was no such consideration and the consequence is that the Tribunal did not complete its review function. That is a jurisdictional error and the applicant should receive the relief she seeks.
[93] T 9, 10, 13, 16 and 19
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 April 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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Appeal
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