SZWBT v Minister for Immigration

[2015] FCCA 1418

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1418

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

ADMINISTRATIVE LAW – Allegation that the Tribunal fell into jurisdictional error by failing to consider in full the applicant’s complementary protection claims and by failing to put to the applicant information that was adverse to his claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 424AA, 424A

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Applicant: SZWBT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 303 of 2015

Judgment of: Judge Smith

Hearing date: 30 April 2015

Date of Last Submission: 30 April 2015

Delivered at: Sydney

Delivered on: 29 May 2015

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Mr K. Eskerie, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 303 of 2015

SZWBT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the second respondent (“Tribunal”) dated 16 January 2015 affirming a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a protection visa.

Background

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 29 June 2012 as an irregular maritime arrival. On 14 January 2013 he lodged an application for a protection visa.

2. The applicant claimed that he was a fisherman who had started having problems with his work from the age of 19. The Sri Lankan Army had not allowed him to work for himself and wanted him to work for them without any pay. When he refused they would beat him. He was also threatened with a gun and told that they would kill him if he refused their orders.

3. In 2005, when the applicant was going to work, members of the Sinhalese Army stopped him and asked him to buy cigarettes and liquor. When he refused they beat him very hard, slapped him and punched him in the face causing him to lose a tooth. On another occasion in 2005, when the applicant was going fishing, members of the Army stopped him again and asked him to do cleaning work for them. They made him take off all of his clothes and run around.

4. In 2011 the Army again asked him to do cleaning work. One of them said that he was not doing it properly and beat him. The man pushed the applicant against a metal fence, slapped him and kicked him very hard.

5. On 19 August 2013 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.

6. The applicant appeared before the Tribunal on 15 December 2014 to give evidence together with his migration agent. As noted earlier on 16 January 2015 the Tribunal made a decision to affirm the decision of the delegate.

7. The Tribunal accepted that the applicant was a Tamil and born in a fishing town on the West Coast of Sri Lanka. However, it did not accept his claims to have been beaten and harassed by members of the Sri Lankan Army. He gave the following reasons for that finding: first, independent country information available to the Tribunal indicated that there were no Army camps or bases in the applicant’s fishing village; secondly, there were no independent reports of soldiers forcing Tamils or Tamil fishermen in that village to work for them; and thirdly, the applicant’s evidence was vague and inconsistent in key respects and, in particular, in connection with the dates of the occasions on which he claims he was assaulted or mistreated by soldiers. In this last respect the Tribunal accepted that the applicant was an essentially illiterate young man and extremely unsophisticated and for that reason that he may have had considerable difficulty providing a coherent narrative of the circumstances. For that reason the Tribunal did not closely pick over any inconsistencies in his evidence and overlooked some minor inconsistencies. However, it was on the basis of an assessment of all the evidence that the Tribunal came to the view that it did not accept that the applicant had been routinely harassed, beaten and prevented from working by soldiers in his village. While it did accept that prior to 2009 the applicant may have experienced the mistreatment that he claimed in light of the frequent military sweeps that took place in his village, it did not accept that that took place after 2009.

8. The Tribunal did accept that the applicant may have been subjected to some minor harassment and possibly one or two incidents of minor physical mistreatment by soldiers after 2009 but found that that did not amount to serious harm amounting to persecution. As the evidence did not suggest that the situation would be any different if the applicant were to return, the Tribunal concluded that the chance of the applicant facing harassment assault and forced labour by the Sri Lankan military in the reasonable foreseeable future was remote.

9. The Tribunal next considered the circumstances that might occur because the applicant had departed Sri Lanka illegally and would be returning as a failed Tamil asylum seeker. It found that there was no real chance that the applicant would be suspected on return of involvement with the LTTE and he did not have of well-founded fear of persecution for that reason. Similarly, status as a failed Tamil asylum seeker would not give rise to such an imputation given that the applicant had no background of any real or imputed connection with the LTTE. It found that on return to Sri Lanka the applicant would be detained for questioning, that security and character checks would be undertaken, and that he would be remanded and charged with an offence under the Immigrants and Emigrants Act. However, it found that the period of detention would be short, most likely not more than four days at most and that he would be released on bail. It found that none of that amounted to Convention persecution simply because there was a non-discriminatory application of a law of general application.

10. The Tribunal then considered a claim that was raised by the applicant at the hearing, namely that he feared harm from grease men. The Tribunal accepted that the applicant may have a subjective fear of grease men but found that there was no real chance that he would be subjected to any kind of harm by such people.

11. At the hearing, the applicant’s adviser also submitted that the applicant could face extortion upon return to Sri Lanka because, as a person who had spent time overseas he would be perceived as wealthy. The Tribunal rejected this claim because the applicant’s evidence that he is a poor illiterate fisherman meant that there was no real chance that he would face such extortion.

12. On the basis of all these findings, both individually and on a cumulative basis, the Tribunal was not satisfied that the applicant met the criterion in sub-s.36(2)(a) of the Act. It then considered the criterion in sub-s.36(2)(aa). In this respect, it focused on the potential for the applicant to be interrogated and detained briefly upon return to Sri Lanka. While it accepted that the conditions in prison or detention may be poor, evidence did not suggest that the they would pose a real risk to the applicant’s life and, in any event, did not accept that any pain or suffering caused by the prison conditions would be intentionally inflicted as required by the definition of cruel or inhuman treatment or punishment in s.5(1) the Act.

13. The Tribunal concluded that there was no real risk the applicant would be subjected to torture, or any other form of physical mistreatment amounting to significant harm and specifically, cruel or inhuman treatment or punishment or degrading treatment or punishment, when he is questioned at the airport or during any period in which he may spend in prison or a detention on remand upon his return. For that reason the Tribunal found that the applicant did not satisfy the requirements of sub-s.36(2)(aa) of the Act.

Consideration

Ground 1: Failure to consider in full the complementary protection obligations Australia owed to me

1. The first ground in the amended application before the Court relates to the way in which the Tribunal considered the criterion in sub-s.36(2)(aa) of the Act. Although the applicant, being unrepresented, was unable to explain this ground at the hearing, the particulars in the amended application suggest that the error is that the Tribunal made a finding that the applicant would be held in degrading conditions in prison for having left the country illegally but failed to make a finding that those degrading conditions would be regarded not as a Convention reason but as inhumane.

2. Subsection 36(2)(aa) provides:

   … a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

3. It will be seen that, unlike the criterion in sub-s.36(2)(a), there is no requirement that there be a particular reason for which the significant harm may be inflicted or suffered. Thus, a conclusion that particular harm would not be for a Convention reason, whether that be because it is a result of the non-discriminatory operation of a law of general application or otherwise, is insufficient to answer the question posed by sub-s.36(2)(aa).

4. However, the Tribunal did not fall into the error asserted in this ground. Although it did consider whether or not there was a Convention nexus to the harm that might be suffered by the applicant upon return to Sri Lanka for reason of his having departed illegally and/or being a failed asylum seeker, it did so in connection with its consideration of the criterion in sub-s.36(2)(a). It did not do so in connection with its consideration of sub-s.36(2)(aa). For that reason this ground must fail.

Ground 2: The Tribunal failed to comply with s.424AA of the Act

1. Once again, the applicant was unable to explain this ground at the hearing and did not file written submissions in support of it. The particulars in the amended application were that the Tribunal did not raise with the applicant or put to him in writing part or parts of the adverse decision for him to comment on.

2. Section 424AA and 424A of the Act relevantly provide:

   424AAInformation and invitation given orally by Tribunal while applicant appearing

   If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)if the Tribunal does so--the Tribunal must:

   (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)orally invite the applicant to comment on or respond to the information; and

   (iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   424A         Information and invitation given in writing by Tribunal

   (1)Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   …

3. Section 424AA provides that the obligation under s.424A may be met by the Tribunal by providing clear particulars of the relevant information at the hearing. If there is no obligation under s.424A then s.424AA has no work to do.

4. The difficulty with this ground is that it focuses upon parts of the decision as being the object of s.424A rather than information that the Tribunal considers would be part of the reasons for decision. Put simply, the issue is that the obligation only arises in respect of “information” and not what the Tribunal thinks about that information. Of course, once such information is identified, in order to comply with s.424A, the Tribunal must ensure that the applicant understands why it is relevant to the review and, to that extent, must reveal what it thinks about the information.

5. In SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 the plurality accepted that Finn and Stone JJ had correctly held in in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at 476-477 that “information” in this context:

   … does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.

   (References omitted)

6. For that reason there was no obligation on the Tribunal to disclose any part of its “adverse decision” and so no requirement to follow the procedure set out in s.424AA.

7. Further, even if the ground had focused correctly on the obligation to provide clear particulars of “information”, there was no such information as to give rise to an obligation under s.424A. The only “information” which the Tribunal appeared to have considered would be part of its reasons for decision was contained in what might be loosely called country information. Such information, not being specifically about the applicant, was excluded from the operation of s.424A(1) because of sub-s.424A(3)(a) which provides:

   (3)     This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   …

   (See also Merkel and Hely JJ in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [138]).

8. For those reasons, the second ground must be rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 29 May 2015