SZWAQ v Minister for Immigration and Anor

[2018] FCCA 555

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAQ v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 555

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider an unarticulated claim whose existence was nevertheless sufficiently apparent on the material before the Tribunal that the Tribunal should have considered it.

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
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1

Applicant: SZWAQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 203 of 2015

Judgment of: Judge Cameron

Hearing date: 7 February 2018

Date of Last Submission: 7 February 2018

Delivered at: Sydney

Delivered on: 7 February 2018

REPRESENTATION

Counsel for the Applicant: Mr N. Kulkarni

Solicitors for the Respondents: Mr L. Leerdam of DLA Piper

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 203 of 2015

SZWAQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia by landing at Christmas Island on 28 June 2012. On 12 November 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs, alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity, his perceived or suspected support of the Liberation Tigers of Tamil Eelam (“LTTE”) and his membership of the particular social group of failed Tamil asylum seekers. 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.

2. 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.

3. I have had the benefit of written and oral submissions on behalf of the parties and I have taken those submissions into account.  For the reasons which follow, the application will be dismissed.

Background facts

1. The applicant’s claims for protection were made in a statutory declaration dated 8 November 2012 attached to his visa application, at an interview with the delegate on 18 January 2013 and in written submissions to the Tribunal dated 8 November 2013 and 10 December 2014.  He also appeared before the Tribunal at a hearing.  In his statutory declaration, the applicant relevantly made the following claims:

   a)he was born in a predominately Tamil region of Sri Lanka that was under the control of the LTTE;

   b)in about 1985 his uncle, who was a LTTE member, went missing. After his uncle’s disappearance the Sri Lankan Army (“SLA”) and the LTTE continued to interrogate and harass his father in relation to his uncle’s whereabouts;

   c)in 1990 he and his family left Sri Lanka to seek refuge from the war there and to avoid persecution from or by the SLA.  They fled to India where they lived in various refugee camps;

   d)his maternal aunt’s husband was abducted during the Sri Lankan civil war and never returned;

   e)in 2009 his brother left India to come to Australia and is now an Australian permanent resident; and

   f)he feared that if he returned to Sri Lanka he would be subject to harm by the Sri Lankan Government and the SLA due to his race, his imputed political opinion or his association with his uncle, the LTTE member.  He claimed he also feared he would be detained because he was from a particular social group of failed Tamil asylum seekers or because he was a returnee from Indian refugee camps.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant was 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.

2. The Tribunal accepted the following relevant claims made by the applicant as credible:

   ·The applicant is a citizen of Sri Lanka having been born in the city of … in Northern Province;

   ·The applicant’s uncle was a member of the LTTE;

   ·The applicant’s father provided food to the LTTE in around 1985 and before;

   ·The applicant’s uncle disappeared in 1985 as a deliberate attempt to avoid further involvement with the LTTE. He reappeared again in India and reunited with his family. He does not continue to hold pro-LTTE, pro-separatist views;

   ·After the applicant’s uncle’s disappearance, the applicant’s father was questioned and beaten by the Sri Lankan Army, as well as questioned by the LTTE;

   ·The applicant’s mother’s sister’s husband was taken for questioning by the Sri Lankan Army in relation to his uncle’s disappearance and never returned;

   …

   ·The applicant and his family travelled illegally by boat to India in 1990, when the applicant was ten years old; and

   ·The applicant’s family … have lived in refugee camps in Tamil Nadu India since 1990.

3. Further findings and reasons expressed by the Tribunal were summarised by the Minister in his written submissions in the following terms which I adopt:

   9.The RRT acknowledged that if the applicant’s uncle’s and father’s involvement with the LTTE was identified on the applicant's return to Sri Lanka, the applicant might be questioned as to this.  The RRT found the applicant would be in a position to provide relevant information that would verify his status as a longstanding refugee in India.  The RRT found the applicant would be able to establish his bona fides and convince the authorities he was not a pro-separatist advocate or at [sic] risk to the unity of Sri Lanka, with relative ease. The RRT did not consider that the applicant presented a risk profile, particularly as he left Sri Lanka aged 10, such that the applicant faced a real chance of serious harm during the process of questioning.

   10.The RRT held, at [92] [sic], that given the significant numbers of asylum seekers who had returned to Sri Lanka and having regard to country information, the preponderance of information suggested the applicant would not be detained for more than several days, whilst checks on him were undertaken. ….

   11.At [83], the RRT stated that, to the extent the applicant was detained as part of this process, the Tribunal did not accept that one or more of the five Convention reasons would be the essential and significant reason for the applicant being detained for a few days.  The RRT found the essential and significant reason would be the administrative processing of returnees on a non-discriminatory basis.

   12.With respect to the applicant’s illegal departure claim, the RRT found it was not satisfied the applicant would be prosecuted given he was aged 10 at the time of his departure and because of the passage of time.

Proceedings in this Court

1. In his further amended application the applicant alleged:

   1.The Tribunal dealt with the applicant’s claim on the basis that “Issues relating to Tamil race, political opinion and being a returned asylum seeker are all integrally connected and these will be considered together” (CB223, para 40) and assessed his claim “with specific respect to his Tamil race and associated with that an imputation of political – LTTE – connections and as a failed asylum seeker” (CB 233, para 66).  A distinct integer of the applicant’s claim was that he fears persecution by reason of his direct family links to the LTTE, not merely imputation of LTTE involvement arising from his Tamil ethnicity.  The Tribunal failed to independently consider this integer of the applicant’s claim.

   2.The Tribunal accepted that the applicant’s uncle was a member of the LTTE who disappeared in 1985 and “reappeared in India”: CB223, para 38.  The applicant became aware that his uncle was in Chennai: CB48, para 13 and CB221, para 25.  Although the Tribunal accepted the applicant’s uncle no longer held pro-LTTE views, the Tribunal did not consider whether he may still be of interest to the Sri Lankan authorities.  In the circumstances a question for the Tribunal to consider was whether the applicant, if required to return to Sri Lanka, would be interrogated about his uncle’s whereabouts and suffer harm during such interrogation or as a result of his knowledge of his uncle’s whereabouts.  This question arose squarely on the materials before the Tribunal.  The Tribunal failed to deal with this aspect of the applicant’s claims.

2. The determination of this case turns largely, although not exclusively, on what the Tribunal said in paras.76 and 77 of its reasons, namely:

   The Tribunal acknowledges that if his uncle’s and father’s involvement in the LTTE is identified, then this may cause particular questioning of the applicant on the subject.  The applicant is likely to indicate to the authorities that he was 10 years old when he left Sri Lanka, that he has lived in refugee camps in Tamil Nadu ever since, that he has and has never had any LTTE involvement or provided any support for the LTTE cause.  He will indicate that his key priority has been to survive in India and provide support to his family.  He will indicate that his family have all lived in India since 1990 and have not provided any support for the LTTE since then.  The applicant will be in a position to verify his status as a long standing refugee in India with documentation such as his Sri Lankan refugee identity card and schooling certificate from India.

   The Tribunal is of the view that the applicant will be able to establish his bona fides and convince the authorities that he is not a pro-separatist advocate or at risk to the unity of the Sri Lankan state with relative ease.  The independent information already referred to indicates that the key priority of the Sri Lankan government is to prevent pro-separatist activity.  The Tribunal does not consider that the applicant presents a risk profile, particularly given that he left Sri Lanka at the age of 10, such that he would be at real chance of serious harm during the process of questioning as to his identity, background and intentions.  The authorities will well recognise that the applicant, coming as he does from the North of the country during the period in which his area was occupied by the LTTE, will have had family connections to the LTTE.  The chance that they will now have an adverse interest in the applicant that would result in him facing serious harm as a result of those connections some 30 years ago is remote.  While it is the case that the applicant has family links to LTTE members in terms of UNHCR guidelines, the Tribunal considers that those links are too attenuated and in the distant past to create a real chance of the applicant suffering harm as a result, or as a result of the questioning process.

Ground 1

1. In my view, it is apparent from a consideration of paras.76 and 77 of the Tribunal’s decision that the applicant’s claim to fear persecution by reason of his direct family links to the LTTE was not only identified by the Tribunal but discussed in some detail.  At the risk of doing a disservice to the very articulate submissions of Mr Kulkarni who appeared for the applicant, I believe that those paragraphs provide an answer to the allegation made in the first ground of the further amended application.

Ground 2

1. The substance of the second ground of the further amended application is that the Tribunal failed to consider a claim which, although not expressed, was one which it ought to have considered in accordance with the principles discussed in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1. The applicant argued that, when looked at as a whole, it was apparent when he was before the Tribunal that a claim was available to him that:

   a)the Sri Lankan Government would be interested to know the whereabouts of his uncle who was, by that time, living in Chennai; and

   b)the authorities were likely to interrogate him in relation to that matter, such an intention being evidenced by the fact that, according to him, in 1985 his father had been severely mistreated by the Sri Lankan authorities and another uncle had disappeared.  It may be presumed that the allegation is that that uncle was murdered.

2. The difficulty for the applicant in making that argument is that too many disparate strands of different parts of the claim need to be knitted together to create the claim propounded.  As the Full Court said in NABE at 19 [58]:

   … a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

3. The way the applicant presented his case to the Tribunal does not suggest that a claim of the sort for which he contended was apparent on the face of the material, such that perceiving it did not require constructive or creative activity.  The Tribunal did not fail in its duty by not considering a claim which it ought to have considered. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  20 March 2018