SZWBQ v Minister for Immigration
[2017] FCCA 624
•31 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWBQ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 624 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant the applicant a Protection visa – whether Tribunal applied Refugee Convention criteria when assessing claim against complementary criterion – whether Tribunal failed to consider integer of applicant’s claim – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 91R(1)(c) |
| Applicant: | SZWBQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 294 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 15 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges |
| Counsel for the First Respondent: | Ms R Francois |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 294 of 2015
| SZWBQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Sri Lanka and a Tamil, seeks judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
At the hearing before me, Mr Hodges, solicitor, appeared on behalf of the applicant. Mr Hodges informed me he had instructions to appear on behalf of the applicant but, having read the material, he was unable to make any submissions that might be able to assist the applicant. Mr Hodges further said, however, that he did not have instructions to withdraw the application.
Ms Francois, who appeared for the Minister, submitted that I was bound to consider the application on the grounds stated in the amended application. Ms Francois tendered the Court book, read an affidavit that had been filed on behalf of the applicant annexing a transcript of the hearing before the Tribunal, and otherwise said that, subject to any questions I might have, the Minister was content to rely on his written submissions. I admitted the court book into evidence, read the affidavit, and reserved my judgment on the grounds of application stated in the amended application filed on 15 April 2016.
Before I consider the grounds on which the applicant relies, it will be necessary to set out the applicant’s claims for protection, and the reasons for which the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.
Claims for protection
The applicant arrived in Australia on 17 July 2012 as an irregular maritime arrival. The applicant was first interviewed by an officer of the Department of Immigration and Citizenship (as the Department was then known) on 18 September 2012,[1] and he lodged an application for a Protection visa on 13 December 2012.[2]
[1] CB1-18
[2] CB19-76
In a statement that formed part of his application for a protection visa,[3] the applicant claimed he supported the Tamil Kootani Party (TKP) since he was 19 years old. The applicant campaigned for the party because his uncle was a candidate. In 2006 the applicant hired a three-wheeler to a person who attended “Pongu Tamil”, which was a protest against the Government regarding the rights of Tamils. The person who hired the three-wheeler was subsequently killed and, after this, men in civil clothes went to the applicant’s house when he was not at home, and asked questions about why the applicant hired the three-wheeler to be used in the protest. Within two months the applicant left Sri Lanka for Qatar. Many people who had been involved in the protest had been shot and killed, including some of the owners of three-wheelers used in the protest and the applicant feared the same thing would happen him.
[3] CB48-51
The applicant returned to Sri Lanka after his contract finished in Qatar. The applicant’s family planned to move to a different area and this gave the applicant comfort. From the time the applicant returned to Sri Lanka until January 2012, the applicant and his family lived under the rule of the Sri Lankan Army who intimated and harassed Tamils. Many Tamils were also being abducted.
In 2010 members of the Tamil Makkal Viduthalai Puligal (TMVP) went to the applicant’s family home requesting the applicant’s mother help them with their campaign. The applicant’s mother was a part of a women’s welfare group and the TMVP thought she could assist their campaign. The applicant’s mother did not want to support the TMVP because she supported the TKP. However, the TMVP pressured her into signing a document that said she would support the TMVP but later never assisted them.
In 2010, the applicant campaigned for the TKP in many areas and spoke at several rallies against the TMVP. In January 2012, the applicant’s father informed the applicant that his friends had advised him that unidentified people had inquired about the applicant. Six or seven days later, the applicant was told by people in the village that unknown people had inquired about the applicant. The applicant fled to Colombo but later returned home to see his unwell father. The applicant was too scared to stay at home and stayed with his aunt at night.
Approximately one week after the applicant fled Sri Lanka, his sister’s husband was arrested, has not been released and is “under suspicion but I do not know further details”. While the applicant was in detention in Australia, his mother informed him that people in “civil clothes” came to his home to look for him and had a photograph of the applicant making a speech at one of the TKP rallies. The applicant fears returning to Sri Lanka because he is a Tamil and a supporter of the TKP which speaks out against the government. The applicant claimed candidates and supporters of the TKP have been targeted by groups such as the Karuna group who are associated with the government.
The applicant made additional claims before the Tribunal about incidents which occurred before he departed Sri Lanka. The applicant claimed that, during the ceasefire, there were Liberation Tigers of Tamil Eelam (LTTE) vehicles parked near the applicant’s house which would make “troubles” in the village. These “troubles” were noticed by the army. The applicant also claimed his parents had to move to Trincomalee on one occasion because of the problems in his village caused by the LTTE. The applicant claimed 18 boys had been “picked up” and badly tortured and he was worried about living in the area. The applicant claimed in 2006, the LTTE attacked an army camp and the applicant was later hit resulting in his finger being broken. The applicant referred to an incident during which a bomb was planted, there was firing and the applicant was injured whilst running.[4]
[4] CB194, [16]
The applicant made additional claims before the Tribunal relating to the people who were looking for the applicant because of his involvement in the Tamil political party. The applicant claimed the person who is looking for the applicant is someone he went to school with called [Mr S] whom he had a physical fight with during the election campaign in 2010.[5]
[5] CB195, [19]
Tribunal’s decision
The Tribunal first considered the applicant’s claims about the incidents he said occurred before he departed Sri Lanka in 2012. The first claimed incident, or series of incidents, concerned the applicant’s experiences with the Sri Lankan Army.
The Tribunal accepted the applicant lived in an LTTE occupied area, and it is likely that, during the civil war, he was hit by the army after an attack on an army camp and was injured whilst running away. The Tribunal also accepted that the army intimidated and harassed Tamils; that the applicant’s family erected a fence on their land but the army tore it down, broke street lamps and that people were fearful of going out at night; that there were numerous abductions and disappearances during the civil war; and that the experiences during the war would have been frightening and, like other Tamils, the applicant and his family were subject to considerable trauma and displacement during the war. The Tribunal found, however, that the harm and displacement the applicant experienced was due to his being a Tamil living in an area occupied by the LTTE while there was an ongoing war between the LTTE and the Sri Lankan government forces. The Tribunal found the applicant’s evidence did not indicate he was a member of the LTTE or involved with the LTTE, apart from living in an LTTE occupied area, or that he was injured or harmed because he was suspected of being an LTTE member or supporter. [6]
[6] CB194, [17]
The Tribunal next considered the applicant’s claims concerning people whom the applicant claimed were looking for him as a result of his involvement with the TKP. The Tribunal found the applicant’s evidence to be confused and inconsistent.[7] The Tribunal relied on the applicant’s not having included in his initial statement that he was sought out not only because of his involvement with the TKP but also because he had a fight with Mr S; and the Tribunal’s not accepting the applicant’s explanation for his failure to mention the fight with Mr S in his statement.[8] The Tribunal also did not accept the applicant’s claim that he had lent his three wheeler vehicle to someone who was later killed, or that he later fled Sri Lanka to Qatar because of this. The applicant did not mention this claim at the hearing before the Tribunal until the Tribunal specifically prompted him. The Tribunal noted that “the problematic nature of the evidence in relation to these issues raises concerns as to the truthfulness of the applicant’s claims”.[9]
[7] CB195, [20]
[8] CB195, [20]
[9] CB196, [20]
The Tribunal found the applicant’s claims that he was sought by Mr S and the Karuna group from the time of the 2010 elections until the time the applicant left Sri Lanka in June 2012 not credible.[10] The Tribunal accepted the applicant was involved with the TKP, both before and after the elections in 2011, that his family supported that party and were also involved in different activities in relation to the party. The Tribunal, however, did not accept the applicant had been sought or harmed in the past as a result of any involvement with pro-Tamil political parties.[11]
[10] CB196, [22]
[11] CB197, [24]
The Tribunal, therefore, did not accept the applicant was sought by Mr S, the Karuna group or any other groups or individuals because of the applicant’s involvement with supporting the TKP in either 2011, 2012 or more recently or, that the applicant hired a three-wheeler vehicle to someone and subsequently had to flee to Qatar as a result. The Tribunal concluded the applicant went to Qatar and Colombo for the purposes of employment, not because he feared harm in his village or elsewhere in Sri Lanka; that whilst the applicant suffered during the civil war and its aftermath, he fabricated his claims in relation to the incidents he claimed led to his leaving Si Lanka for Australia in mid 2012; and that the applicant did not have a political profile as an LTTE supporter or member or an adverse political profile as a result of his and his family’s involvement with pro-Tamil political parties prior to his departure from Sri Lanka in mid 2012. [12]
[12] CB197-198, [25]
The Tribunal was not satisfied, having regard to a number of items of country information and newspaper articles provided by the applicant, that there is a real chance the applicant will be harmed because he is a Tamil or because he is a member of a particular social group of young Tamil males from the Eastern part of Sri Lanka or for any other connotation of the particular social group.[13]
[13] CB198-201, [27]-[33]
The Tribunal accepted the applicant departed Sri Lanka unlawfully; that it will be known upon his return to Sri Lanka that he has unsuccessfully sought asylum in a Western country; that there is some evidence of returnees suffering harm and that there remains a pervasive culture of violence within the Sri Lankan military, police and government; and, that the applicant will be questioned at the airport; that the applicant will be held for a limited period in remand whilst awaiting bail, in conditions that can be poor due to overcrowding and unsanitary conditions. The Tribunal considered that these factors applied to the general population and not specifically to Tamils. It was not satisfied, therefore, that questioning, arrest, the poor conditions in remand and the application of a penalty for illegal departure would amount to systematic and discriminatory conduct within the meaning of s.91R(1)(c) of the Act.[14] The Tribunal was also not satisfied there is a real chance the applicant would suffer serious harm amounting to persecution on arrival in Sri Lanka or when he returns to his village because he is a Tamil, a failed asylum seeker or because he left Sri Lanka illegally without proper documentation, his actual or imputed political opinion or his membership of a particular social group.[15]
[14] CB204, [39]
[15] CB204, [40]
The Tribunal also considered whether the applicant’s claims satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Tribunal was not satisfied there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm when he is questioned at the airport or during any period which he may spend in gaol on remand or that the applicant would be subjected to an enforced abduction or interrogation by the Criminal Investigation Division (CID) following his return to Sri Lanka or that the applicant would be subjected to significant harm upon his return to his village or elsewhere in Sri Lanka.[16]
[16] CB205-206, [43]-[49]
Grounds of application
The amended application contains the following two grounds:
1.At [44] the Tribunal considered the wrong test by applying refugee convention grounds to the complementary protection provisions.
2.The Tribunal erred in failing to consider all integers of the claims.
Particulars
a. At [34] the applicant claimed that people are released and it is when they reach their village they are then being interrogated by the CID; and
b. At [35] the Tribunal accepted that DFAT does not monitor the situation of returnees, however, the Tribunal failed to consider that the applicant may suffer serious or significant harm upon return to his home village.
The first ground claims that paragraph 44 of the Tribunal’s reasons indicates the Tribunal applied the Refugees Convention[17] grounds when assessing the applicant’s claims against the complementary protection criterion. Paragraph 44 reveals no such error. In that paragraph, the Tribunal repeats some of the findings it had previously made when considering whether the applicant had a well-founded fear of persecution for a Refugees Convention reason. In the paragraphs following paragraph 44 of its reasons the Tribunal repeated other findings. The Tribunal did so because the Tribunal considered these findings to be relevant to assessing whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm. In other words, the Tribunal referred to these findings for the express purpose of determining whether the applicant’s claims satisfied the complementary protection criterion. The findings the Tribunal repeated were relevant to that question. The Tribunal, therefore, did not, by repeating those findings, purport to assess the applicant’s claims for complementary protection by reference to the Refugees Convention criteria.
[17] Art.1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees
Ground 1, therefore, fails.
The integer the applicant, in ground 2, claims the Tribunal failed to consider is the applicant’s claim that people are released, and it is when they reach their village they are the interrogated by the CID.[18] As submitted by the Minister, the claim fails on a factual level. The Tribunal did consider that claim.
[18] CB202, [34]
The Tribunal accepted there is some evidence of returnees suffering harm, and there remains a pervasive culture of violence within the Sri Lankan military, police, and government. The Tribunal was satisfied, however, that, based on a report prepared by the Department of Foreign Affairs and Trade, the returnees who have suffered harm “overwhelmingly involve persons who have had reasonable links with the LTTE or who are suspected of such linkages, or person who have such connections”.[19] The Tribunal noted it “has not accepted any political profile” and concluded it was not satisfied “that upon his return to his village” the applicant “will be interrogated by the CID or abducted upon his return to his village or that there is a real chance that he will suffer harm upon his return to his village for any Convention reason”.[20] The Tribunal further concluded it was not satisfied “there are substantial grounds for believing that there is a real risk that” the applicant “will be subject to enforced abduction or interrogation by the CID following his return to Sri Lanka or a real risk that he will be subject to significant harm upon his return to his village, or indeed, elsewhere in Sri Lanka”.[21]
[19] CB202, [35]
[20] CB204, [40]
[21] CB206, [47]
Ground 2, therefore, also fails.
Disposition
The applicant has failed on the two grounds on which he relies. I propose to order that the application be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 31 March 2017
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