SZWAB v Minister for Immigration
[2018] FCCA 2316
•23 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWAB v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2316 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all material evidence. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.36, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 |
| Applicant: | SZWAB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 146 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 23 May 2018 |
| Date of Last Submission: | 23 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Chia |
| Solicitors for the Applicant: | Siva Logan Solicitors |
| Solicitors for the Respondents: | Mr L. Leerdam of DLA Piper |
ORDERS
In the event that a transcript of the proceeding be prepared, the name of the applicant’s wife be redacted and replaced with the letter “X”.
A writ of certiorari issue bringing into this Court to be quashed the decision of the second respondent dated 17 December 2014.
A writ of mandamus issue directing the Administrative Appeals Tribunal, as successor of the Refugee Review Tribunal, to determine according to law the applicant’s application made to the Refugee Review Tribunal on 7 August 2013.
The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.
The first respondent pay the applicant’s costs fixed in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 146 of 2015
| SZWAB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived at Christmas Island as an irregular maritime arrival on 7 July 2012. On 21 November 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity and his imputed political opinion. On 2 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
I have had regard to the written submissions filed on behalf of the parties and to the addresses made to the Court by their legal representatives. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.
Background facts
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection. As summarised by the Tribunal, the applicant relevantly made the following claims at an entry interview, in his protection visa application, in a statement dated 14 November 2012 accompanying his visa application, at his interview with the delegate on 25 February 2013, in his representative’s written and oral submissions to the Tribunal and his Tribunal hearing on 10 December 2014:
a)he was perceived by the Sri Lankan authorities to be a member of or supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) on account of his travel to former LTTE controlled areas in the course of his past employment between 2002 to April 2005, during the Sri Lankan civil war;
b)in 2003 he met his wife who had been working for the Tamil Rehabilitation Organisation (“TRO”), an organisation perceived by the Sri Lankan Government to be an NGO that supported the LTTE;
c)in 2008 his wife was taken by members of the Karuna group, who forced her to withdraw money from a joint bank account connected with the TRO;
d)on multiple occasions between 2008 and 2012 he and his wife were questioned by police on suspicion of being affiliated with the LTTE and in relation to his wife’s involvement with the TRO and TRO funds. The applicant claimed that on a number of these occasions he was taken to and held at the local police station from which he was released upon the payment of bribes. He further claimed that on two occasions he was held overnight by the police and brought before court the next day, having been charged on both occasions with taking wood from the forest and in respect of false cheques;
e)in Sri Lanka he had been perceived as wealthy and had been extorted for money on numerous occasions and experienced physical harm and torture for this reason;
f)since his arrival in Australia, the police and CID had been telephoning his home frequently to ask about his whereabouts and had demanded a large sum of money from his wife. Because of these incidents his wife had left their home and was living as a housekeeper with Roman Catholic brothers; and
g)if he returned to Sri Lanka he would be at risk of serious harm and persecution as a failed asylum seeker returning from Australia. He would also be subjected to criminal charges and possible imprisonment under Sri Lanka’s Immigrants and Emigrants Act.
In written submissions dated 14 February 2014 summarised in the Tribunal’s decision, the applicant’s representatives claimed that the applicant became a target for police extortion after he married in 2009. The representatives further submitted that the police did not really suspect the applicant of having links with the LTTE but rather used this accusation to extort money from the applicant and his wife. It was further submitted that police focused on the applicant and not his wife because he ran a successful business. In this connection his representatives submitted that the applicant was a member of a particular social group, namely “wealthy Tamils at risk of being targeted for extortion” and would be subjected to harm in Sri Lanka for this reason. Attached to those submissions was a statement in which the applicant relevantly said:
2. I and my wife got married in 2009 but we started to live together already in 2006. My wife had been married before but her husband was missing for many years. She had two daughters when we met.
3. The Delegate did not understand why my wife was never arrested, but it is not true that she never had any difficulties. Before we got married she was arrested once herself. Approximately one year after we moved in together she was arrested. I was not at home at the time but in Colombo. Her two daughters were at home and her mother.
4. I know that our priest went to the police and managed to get her release on the same day. I don’t know how he managed this and if he had to pay a bribe. After this incident my wife disclosed that she had difficulties with the police before because of her work with the TRO. She said that she had been arrested and tortured several times. She showed me a scar on her tummy where she had been burned by the Army.
5. Before she told me this I had not known about it and when I asked her why she hadn’t told me she said that she was scared that I would leave her. In 2009 we officially registered our marriage.
When the Tribunal raised with the applicant the possibility of his relocation to Colombo, he responded that when a person moves in Sri Lanka they are required to register with the local grama niladhari and that he had previously been summoned by the Colombo CID and if he went there they might shoot him.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:
6.The RRT did not accept that the applicant was suspected of LTTE involvement, or had a pro LTTE political opinion imputed to him, because of his travel as a sales manager for an insurance company into LTTE controlled areas in 2002-2005, for the reasons given at [87].
7.The RRT accepted that the applicant’s wife worked for TRO, up to 2008, managing three ‘orphanages’. The RRT was not satisfied that the applicant’s wife was suspected by the authorities of having any significant political role or substantive links with the LTTE or residual control of significant TRO funds, at [91] for the reasons given. It followed that the applicant was not suspected of having LTTE links, or knowledge of LTTE funds, because of the wife’s claimed profile.
8.With respect to the applicant’s police extortion claims, the RRT accepted that the applicant was on several occasions taken to the police station, and accepted that on one or more occasion the police sought a bribe to release the applicant. Although noting that the applicant was a moderately affluent local businessman, the RRT was not satisfied the applicant was targeted for harm as a member of a particular social group. The RRT was satisfied that extortion was directed against the applicant as an individual in a position to pay. The RRT was satisfied that any extortion was not for the essential and significant reason of a Convention reason.
9.The RRT accepted however that incidents of extortion by corrupt local police officers may recur in Batticaloa and this was capable of constituting significant harm for the purposes of complementary protection.
10.The RRT was not persuaded that the police actions in Batticaloa led to the reasonable conclusion that the applicant would be targeted by police anywhere in Sri Lanka.
11.The RRT considered the applicant's illegal departure claim from [109]. It was not satisfied that the applicant being arrested and held on remand amounted to serious harm or persecution. The RRT was satisfied any punishment the applicant would face would be under a law of general application and was not disproportionate or arbitrary.
12.The RRT considered relocation from [114];
12.1It noted that although extortion occurs in Sri Lanka the evidence did not suggest that the incidence of this crime was such that there was a real chance or real risk for any individual in Colombo or Sri Lanka generally. The RRT did not accept the applicant faced a real chance or a real risk of extortion in Colombo amounting to serious or significant harm. Nor was the RRT satisfied that extortion by local police in Batticaloa represented a problem for the applicant elsewhere in Sri Lanka, particularly in Colombo. The RRT did not accept that the persons by whom the applicant was opportunistically extorted in Batticaloa would more than two years later seek, identify and target the applicant in Colombo.
13.The RRT considered from [116] the practicalities of the applicant relocating to Colombo. At [117] it considered the applicant's particular skills and work experience.
14.The RRT considered complementary protection from [122]. It found that prison conditions were a real risk faced by the population generally as a potential consequence of breaking the law. Nor was it clear without evidence to the contrary that harm caused was intentionally inflicted, citing SZTFK v MIBP [2014] FCCA 282 [sic [2014] FCCA 2827].
15.At [124], the RRT said that ‘[h]aving regard to all the relevant circumstances, the Tribunal is satisfied that the applicant could avoid any real risk of significant harm within Sri Lanka by relocating to Colombo.’
…
(Some references omitted)
The Tribunal was satisfied that the applicant did not face a real chance of serious harm amounting to persecution on return to Sri Lanka now or in the reasonably foreseeable future. With respect to the complementary protection criteria, the Tribunal was satisfied that the applicant could avoid any real risk of significant harm within Sri Lanka by relocation to Colombo.
Proceedings in this Court
In his amended application the applicant alleged:
1.That the decision of the second respondent Tribunal was affected by jurisdictional error in that the Tribunal constructively failed to exercise its jurisdiction in that it did not consider an integer of the applicant’s claims for protection.
Particulars
a.In a statement dated 14 February 2014 at CB 203 the applicant claimed his wife had told him that she had difficulties with the police before 2006 because of her work with TRO, that she had been arrested and tortured several times and had been burnt on the stomach by the Army.
b.In its decision at RRT [91], CB 250 the Tribunal found it was not satisfied that the applicant’s wife was suspected by the authorities of having any significant political role or substantive links with the LTTE or residual control of significant TRO funds. The Tribunal reached this conclusion on the basis that “It is inconceivable that if the applicant’s wife had such a profile, she would not have received serious and direct attention from the authorities.” The reasoning did not refer to or address the claim in question in reaching its conclusion, or otherwise purport to limit the reference to “serious and direct attention from the authorities” to a period after the end of the war in 2009.
c.The Tribunal otherwise accepted the applicant’s claims that his wife for a period up to 2008 worked for TRO managing three orphanages, and that the Sri Lankan authorities viewed persons with a high profile in the TRO seriously and with suspicions that they had substantive links with the LTTE or raised funds for the LTTE: at RRT [90]-[91].
d.On the basis of its findings in relation to the LTTE and TRO the Tribunal did not accept as credible that a group of CID officers travelled from Colombo to Batticaloa to detain the applicant and/or his wife, or that there has been or continues to be an active interest in the applicant and/or his wife, or threats against them, by the Colombo CID: at [101].
e.The Tribunal went on to find that the applicant could safely relocate to Colombo away from extortion by local police in Batticaloa.
Ground 1
Before the Court the parties raised a number of matters but it is a matter relatively simple and straightforward in its resolution and turns on the fourth paragraph of the applicant’s statement of 14 February 2014.
The Act makes an applicant’s claim and its component integers considerations which are mandatorily relevant: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348-349 [75]; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 per Allsop J at 259 [42], Spender J agreeing at 245 [1]. The applicant’s allegation was that the Tribunal failed to have regard to an integer of his claim, namely, the mistreatment he said his wife had suffered at the hands of the Sri Lankan authorities before he and she became a couple. However, such a matter was not a consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Htun v Minister for Immigration & Multicultural Affairs; Abebe v Commonwealth (1999) 197 CLR 510, Minister for Immigration & Multicultural Affairs v Yusuf in that it was not a claim or an integer of a claim. Rather, it was a matter of fact relevant to the issue which the Tribunal had to decide.
The Tribunal was required to consider an applicant’s claims in light of the facts as disclosed by the evidence in its possession at the time it made its decision on the review. If the Tribunal failed to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision” and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review, then a failure to conduct the review in the manner required by the Act amounting to a jurisdictional error would have occurred; Minister for Aboriginal Affairs v Peko-Wallsend Ltd per Gibbs CJ at 30 and 31, Mason J at 40, 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at 542 [49]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural Affairs [2005] FCA 1389 at [72]. Even so, an error of fact will not generally ground judicial review and, even if amounting to a misconstruction of an applicant’s claim, may be of no consequence to the outcome of the review: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at 16 [53], 20 [63].
It is apparent that in its summary of the evidence before it the Tribunal did refer to the applicant’s claims concerning his wife’s mistreatment before their relationship commenced. It is also apparent that when relevant evidence was considered by the Tribunal, most particularly in para.91 of its reasons, that information was not weighed in the balance. If, as the Minister submitted, it may be inferred that this was because it was of no real weight, then the Tribunal might have said so. Although it was not necessary that the Tribunal refer in its reasoning to every item of evidence and every contention made by the applicant: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [46], given the way the Tribunal expressed itself at para.91 of its reasons, I am compelled to conclude that it did not take the evidence of early mistreatment into account.
As observed earlier, whether consideration of particular evidence will amount to jurisdictional error will turn on whether the Tribunal’s exercise of power or purported exercise of power is affected thereby. In this case I find that it was. The Tribunal’s finding that the applicant’s wife had had no profile which might have been of interest to the Sri Lankan authorities was a central foundation for its conclusion that the applicant was not at risk of Convention-related harm by reason of his wife’s prior activities, and the related imputation to him of pro-LTTE sympathies. However, the finding that she had no such profile was arrived at without giving consideration in the reasoning process to the events to which the applicant referred to in his statement of 14 February 2014. Had the Tribunal taken that information into account, the review might have had a different outcome.
In the circumstances, the failure to consider the information in question was an error which went to the Tribunal’s exercise of jurisdiction.
Conclusion
As jurisdictional error on the part of the Tribunal has been demonstrated, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 24 August 2018
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