SZWBV v Minister for Immigration
[2015] FCCA 1543
•5 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWBV v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1543 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision was affected by jurisdictional error – whether the Tribunal failed to address a claim whether the Tribunal erred when assessing a claim against the complementary protection criterion – Tribunal failed to deal with all of the applicant’s claims in relation to his fear of persecution by non-state actors by reason of his race – constructive failure on the part of the Tribunal to exercise its jurisdiction – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 430 |
| BZAFM v Minister for Immigration & Border Protection [2015] FCAFC 41 Minister for Immigration & Citizenship v SZQPA (2012) 133 ALD 292 SZQPA v Minister for Immigration & Citizenship [2012] FMCA 123 |
| Applicant: | SZWBV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 309 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 29 April 2015 |
| Date of Last Submission: | 18 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitor for the Respondents: | Mr L. Dennis, Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the Refugee Review Tribunal (“Tribunal”) quashing the decision of the Tribunal dated 20 January 2015.
A writ of mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 20 August 2013 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 309 of 2015
| SZWBV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the second respondent (“Tribunal”) dated 20 January 2015 that affirmed a decision of a delegate of the first respondent (“Minister”) made on 20 August 2013 to refuse to grant the applicant a protection visa.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia on Christmas Island on 1 August 2012 without a valid visa. He was, for that reason, an offshore entry person and prohibited from making an application for a protection visa. However, on 21 November 2012 the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (“Act”) permitting the applicant to make such an application. In December 2012 the applicant made an application for a protection visa.
The applicant claimed that his father had worked as a driver for the LTTE in Jaffna although he had not been a member of that organisation. The applicant’s father was killed by the Sri Lankan army in 1995 and the family’s home was destroyed. The applicant and his family then moved to a refugee camp and lived there from 1995 until 2002. After that, the family moved to live with the applicant’s maternal grandmother which was in an area commonly occupied by Sinhalese. Many of the Sinhalese made complaints to the police about the applicant and his family and in August 2009 the police came to their house and asked them why they had moved from Jaffna to that area. In particular they asked whether the applicant was a member of the LTTE or whether he had ever been involved in LTTE activities.
A month later, the applicant’s step-father was taken to the same police station and asked similar questions; however, the police did not accept the step-father’s responses and detained him. They eventually released him when his mother brought her four children to the police station to prove that the applicant’s step-father was not an LTTE member.
For the next six months, the police went to the applicant’s house once a month asking when the family would return to Jaffna.
In May 2010 the applicant was attacked by a group of Sinhalese for failing to raise the flag in celebration of the anniversary of the killing of the LTTE leader. In October 2011 a candidate for local elections forced the Tamils, including the applicant’s family, to vote for him on threat of being beaten up. When that candidate won the election, an unsuccessful Sinhalese candidate realised that Tamils in the applicant’s village had voted for an opponent and sent people to bash Tamils in the village.
The applicant started working in Colombo in 2010 and returned home once a month. Each time that he did 10 to 15 Sinhalese would be waiting at the bus stop for Tamils including himself. When he would get off the bus, they would search him and take his money. If he refused to give them money he would be beaten. On one such occasion in January 2011 the applicant fled and had a knife thrown at him. In April 2012 an uncle of the applicant visited his family and when he got off the bus was asked for money by a group of Sinhalese. Those same people came to the family’s house in the evening bashed his uncle and when the applicant’s step-father intervened he too was beaten as well as the applicant. After that incident the applicant’s family decided to send the applicant to Australia to avoid further harm.
The applicant claimed that if he were to return to Sri Lanka, the Sri Lankan army and Sinhalese people would harm him because all Tamils who come from Jaffna were suspected by them to be LTTE members. He also claimed to fear harm because he was a family member of his father who had worked for the LTTE.
On 20 August 2013 a delegate of the Minister decided to refuse to grant the applicant a protection visa and the applicant subsequently applied to the Tribunal for review of that decision. In written submissions dated 27 November 2014 the applicant’s migration agents made extensive submissions in support of the applicant’s claims and also raised new claims. They stated that in February 2014 men had come to the family’s house and asked for the applicant’s whereabouts. When the applicant’s mother stated that the applicant had gone for work she was asked how long he would be working and threatened to take the applicant’s younger brother to force the applicant to return. The younger brother was attacked but managed to escape and is currently in hiding. It was claimed that the younger brother had approached, and was now registered with, the UN. The family were again approached in September 2014 in relation to the applicant’s whereabouts.
The submission also stated that the applicant feared harm for reasons of his race (Tamil), his imputed political opinion (perceived supporters of the LTTE), his membership of a particular social group (Tamils from the Northern Province) and his membership of another particular social group (Tamils who have sought asylum in Australia or failed asylum seekers).
The applicant attended a hearing on 4 December 2014 during which the Tribunal raised certain concerns and queries in respect of the applicant’s evidence and claims. In response to those queries, the applicant’s agents provided further written submissions to the Tribunal by way of letter dated 17 December 2014.
On 20 January 2015 the Tribunal made a decision to affirm the decision of the delegate.
Tribunal’s decision
The Tribunal found the applicant to be a witness of credit whose evidence had been reliable subject to a few matters. It accepted that the applicant was born in Jaffna and that his father had disappeared in 1995 but did not accept that the applicant’s father had been killed at that time. It accepted that the applicant had been told by his mother that his father had worked as a driver for the LTTE but found that neither the applicant nor any other member of his family had any link to the LTTE. While it accepted that the applicant’s house had been destroyed in 1995 by the army and that the family had moved to a refugee camp before being resettled in a predominantly Sinhalese area it did not accept that the applicant had been taken away and questioned by the police. Similarly, although the Tribunal accepted that the step-father had been questioned by the police it did not accept that he had been detained as claimed and found that the applicant had exaggerated this evidence.
The Tribunal accepted that the applicant had been beaten by some local Sinhalese for failing to put up a flag as he had claimed but did not accept that he had suffered continual general harassment from the Sinhalese whenever he caught a bus or got off the bus upon returning home from work, although it did accept that similar incidents had occurred from time to time.
The Tribunal accepted the claims concerning the elections in 2011 and also that, on one occasion in January 2011, the applicant had had a knife thrown at him, although it did not accept that this was a particularly motivating factor in the applicant deciding to go to Australia as he did not leave Sri Lanka for another 15 months.
The Tribunal did not accept that the applicant’s brother had been bashed in 2012 or that his step-father had been taken away for questioning in the police station as claimed at the hearing but did accept the earlier claim that in April 2012 he and other family members had been beaten up when 15 Sinhalese came to their house and demanded money from the applicant’s uncle. It also accepted that the applicant’s brother had fled Sri Lanka in February 2014 but did not accept that the people who threatened him were Sinhalese because they were not referred to as such by the applicant in his oral evidence or in the written submissions of 27 November 2014.
By reference to the country information before it, the Tribunal accepted that until the end of the civil war in 2009 Sri Lankan Tamils suffered disproportionately at the hands of the authorities and that the risk of such harm was more dominant in the Northern and Eastern areas of Sri Lanka. However, it found that since the end of the civil war the risk to Sri Lankan Tamils had substantially reduced. On the basis of all of the information it concluded that the applicant would not face harm in Sri Lanka simply on account of his being a Tamil. In particular it found that he had no fear of persecution upon return to Sri Lanka for reason of his imputed support the LTTE and that did not have a well-founded fear of persecution for that reason. Further, it did not accept that the fact that the applicant’s father had worked for the LTTE as a driver more than 20 year at years ago was a reason why the applicant would now be exposed to serious harm should he return to Sri Lanka.
In respect of the claims concerning membership of a particular social group, the Tribunal found, again on the basis of independent information before it, that the applicant would be questioned at the airport and interviewed and investigated by the authorities but was unlikely to be detained for more than a few days while those investigations were carried out. It found that the most likely penalty for leaving Sri Lanka illegally would be a fine and that he would not be given a custodial sentence. In any event, it found that being charged under the relevant act or being detained was the result of the non-discriminatory enforcement of a law of general application. In those circumstances, it did not accept that one or more of the five Convention reasons including membership of any one of the particular social groups would be the essential and significant reason for the applicant being harmed if he returned to Sri Lanka.
The Tribunal then turned to the claim made in the final written submission that the applicant would be denied the ability to subsist in Sri Lanka. In light of the limited evidence given by the applicant in this respect however it did not accept that the applicant had a well-founded fear of persecution for that reason.
On the basis of those findings and, having considered the matters cumulatively, the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason in Sri Lanka and so was not satisfied that he met the criterion in sub-s.36(2)(a) of the Act.
The Tribunal went on to consider the criterion in sub-s.36(2)(aa). It referred to its finding that the applicant may be detained for a few days when he returned to Sri Lanka but found that that fact, as well as any possible penalty, did not constitute significant harm within the meaning of the Act. It also noted the country information to the effect that the risk of torture and mistreatment for the great majority of returnees was low.
For those reasons it was not satisfied that the criterion in sub-s.36(2)(aa) had been met. The Tribunal concluded that the applicant had not satisfied the criteria for the grant of a protection visa and so affirmed the decision under review.
Consideration
Ground 1
The Tribunal fell into error when it failed to address the heightened risk of arrest upon arrival at the airport arising from the death of the applicant’s father who is perceived to have an LTTE opinion
The gist of this ground is that, while the Tribunal did have regard to the applicant’s claims which arose out of his father’s connections to the LTTE, it did not do so in respect of the possibility that this might give rise to a risk of persecution when the applicant arrived in Sri Lanka at the airport. The applicant submits that the Tribunal failed to consider that the purpose of the interrogation at the airport which the Tribunal accepted might occur, was to discover any suspected links with the LTTE. He relied upon the decision in SZQPA v Minister for Immigration & Citizenship [2012] FMCA 123 (“SZQPA”) (affirmed on appeal: Minister for Immigration & Citizenship v SZQPA (2012) 133 ALD 292) for the proposition that this amounted to jurisdictional error. That reliance is misplaced.
In SZQPA, the decision-maker accepted the applicant’s claim that his four brothers had been associated with the LTTE and that the authorities were aware of that. The way in which that claim was dealt with in connection with the return to Sri Lanka and in particular what might occur at the airport was described by Driver FM (as his Honour then was) in the following passage:
[25]At [52] of his reasons the Reviewer accepted, on the basis of a UK Foreign and Commonwealth Office’s 2009 report that the applicant would be likely to undergo scrutiny by the Sri Lankan authorities to determine whether he represents a security risk. At [53] of his reasons the Reviewer accepted that the authorities may well be aware that the applicant’s brothers were imputed to be associated with the LTTE and had been killed in the conflict, that the applicant spent considerable time in LTTE controlled areas and was forced to assist them and that he had fled abroad.
[26]At [54] of his reasons the Reviewer accepted that the authorities may wish to question the applicant as to whether he has any knowledge as to the location of any LTTE hidden caches of materials. At [55] of his reasons the Reviewer accepted that the human rights record of the Sri Lankan government is less than satisfactory and that Tamils in Sri Lanka remain the object of government suspicion, surveillance and discrimination.
[27]Nevertheless, the Reviewer reasoned that there was not a real chance that the applicant will suffer persecution from the Sri Lankan authorities by reason of his ethnicity or imputed political opinion because he has never been an LTTE fighter or member and has not been previously detained or accused. At [58] of his reasons the Reviewer considered the risk that the applicant might be tortured in order to see whether he was able to reveal the location of hidden LTTE weapons caches (which he had admitted transporting by boat) but found that this fear was not well-founded given the applicant’s minor role.
[28]At [59] of his reasons the Reviewer accepted that the applicant would undergo scrutiny upon return to Sri Lanka because he had fled the country illegally and would return without documentation. However, the Reviewer reasoned that he would not be of significant interest to the authorities because he was not an active LTTE member or fighter.
His Honour then explained that this reasoning revealed jurisdictional error:
[29]In my view, the error in the Reviewer’s approach was to focus on the likely outcome of the possible detention and interrogation of the applicant on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role. It would be arguably possible to characterise the error as a failure to address part of the applicant’s claims, or as a finding for which there was no evidence or which was illogical or irrational or as a failure to have regard to relevant evidence. Those grounds are, however, pointers to the real problem. The real problem was that, except in relation to the issue of arms caches, the Reviewer focused on the ultimate outcome of interrogation and detention rather than the process of detention and interrogation itself.
(Emphasis added)
The facts in this case are different. Here, the Tribunal found, at [47]:
… I do not accept the fact that his father worked for the LTTE as a driver more than 20 years ago is a reason why he would now be exposed to serious harm if he returned to Sri Lanka now. …
There was no claim in this case that the applicant would be interrogated or interviewed in respect of anything other than his failed application for asylum in Australia or for his breach of the prohibition against illegal departure from Sri Lanka. For that reason, and in light of its conclusion at [47] in relation to the applicant’s father, the Tribunal here, unlike in SZQPA, was not required to assess what might occur during the course of investigation if it were discovered that the applicant’s father had been a driver for the LTTE. For that reason, this ground must fail.
Ground 2
The Tribunal erred when assessing complementary protection that short time detention would not amount to “significant harm” or “serious harm” of the Act
The applicant concedes that this ground must fail in this court in light of the decision of the Full Court of the Federal Court in SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39 (see also SZTIB v Minister for Immigration & Border Protection [2015] FCAFC 40; and BZAFM v Minister for Immigration & Border Protection [2015] FCAFC 41). In light of that concession it is not necessary to consider this ground.
Grounds 3 and 4
The applicant abandoned these grounds.
Further issue
As can be seen from the summary of the Tribunal’s reasons above, the civil war in Sri Lanka effectively ended in 2009. Nevertheless, the Tribunal accepted the following matters that occurred after that time:
a)the applicant had been beaten by some local Sinhalese for failing to put up a flag in 2010;
b)from time to time the applicant was harassed by Sinhalese when he caught the bus and was searched by Sinhalese for money when he got off the bus and robbed when they found money;
c)during the 2011 elections a local Sinhalese member threatened local Tamils and, on election day, arranged for his supporters to beat up various Tamils including the applicant’s step-father; and
d)in January 2011, when the applicant refused to give some Sinhalese some money, a knife was thrown at him which cut his left foot.
These facts clearly gave rise to the possibility that such incidents might occur to the applicant if he returned to Sri Lanka and that the reason for them could be that the applicant was Tamil. It is possible that, either singularly or taken cumulatively, they might amount to persecution.
I have already set out the way in which the Tribunal purported to deal with the applicant’s claim that he faced persecution for reason of his race; however, it bears repeating. The critical findings were:
a)until the end of the civil war in 2009 Sri Lankan Tamils suffered disproportionately at the hands of the Sri Lankan authorities and this risk was more dominant in the Northern and Eastern areas of Sri Lanka;
b)since the end of the war the risk to Sri Lankan Tamils has substantially reduced; and
c)the Tribunal did not accept that the applicant will face harm in Sri Lanka simply on account of his being Tamil.
At the hearing of the matter, I raised with the solicitor for the Minister the question whether the Tribunal had in fact dealt with all of the applicant’s claims in relation to his fear of persecution by reason of his race. I noted that it was possible that the Tribunal had dealt with that claim only on the basis of the risk of harm from the Sri Lankan authorities and not from non-state actors. Critically, the information relied on by the Tribunal to support the finding set out at [32](c) above appeared only to relate to the Sri Lankan authorities. The issues that appeared to arise were, first, whether the Tribunal failed to deal with a claim made by the applicant; and secondly, whether the Tribunal’s decision was affected by illogicality.
As this issue had not been raised by the applicant, I allowed the Minister leave to address the issue in further written submissions and to the applicant to respond to those submissions.
The Minister’s submissions in relation to these issues were, first, that it ought to be concluded that the Tribunal had dealt with the race-based claim because:
a)it set out those claims;
b)it accepted some of them;
c)it found that the risk to Sri Lankan Tamils had substantially reduced since the end of the war; and
d)its ultimate conclusion was that it did not accept that the applicant faced a real chance of serious harm “for any of the reasons claimed, or cumulatively, or arising on the evidence.”
Those submissions did not address the real matter of concern. It might be accepted that the Tribunal referred to each of the claims made by the applicant and that its ultimate conclusion, at a very high level of generality, could be said to deal with those claims. However, in accordance with its obligations under s.430 of the Act, the Tribunal set out its findings of material facts and the evidentiary basis for those findings. That cannot be ignored even if those reasons are to be read beneficially and without an eye focussed on the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The Minister’s submissions did not address the fact that all of the evidence on which it based its rejection of the applicant’s race-based claim focussed on the risk of harm at the hands of the authorities. First, although, as the Minister submitted, the Tribunal found that the risk to Tamils had substantially reduced since the end of the war, the risk to which it referred (and as explained in its previous paragraph, [42]) was “at the hands of the Sri Lankan authorities.” Secondly, its conclusion was based on reports from the Department of Foreign Affairs and Trade (“DFAT”).
The first DFAT report relied on was dated 3 October 2014. It referred to detention of Tamils under emergency regulations and the PTA[1] and states the opinion that “there are currently fewer individuals detained under the PTA than there were during the conflict. It goes on to say that “the cessation of forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life.” The reference to registration could only be a reference to an activity undertaken by the authorities.
[1] Presumably the Prevention of Terrorism Act 1978.
The next report dealt with the imputation of Tamils with being supportive of the LTTE. Again, that article focussed on the authorities.
The final piece of information relied on was a decision of the UK Upper Tribunal to the effect that “even if a Tamil has LTTE connections or sympathies that will not place that Tamil at risk from the Sri Lankan Government.”
Those reports said nothing about the possibility of the applicant being further harassed by local Sinhalese, whether they be thugs on buses or politicians at election time. In my view, the Tribunal acted on the basis that that information dealt with the whole of the applicant’s claims and that acting on that basis led it to make no findings about the possible recurrence of the harm suffered at the hands of non-state actors. I consider that this meant that it fell into jurisdictional error. That error could be expressed in a number of different ways. As I have noted, one of the possible ways was that the decision was affected by illogicality. I do not need to consider that because the error I have found can most accurately be described as a constructive failure to exercise jurisdiction.
The Tribunal’s obligation to “review” the delegate’s decision required it to determine whether he had a well-founded fear of persecution for reason, amongst other things, of his race. By arriving at its conclusion without determining the risk of harm for that reason at the hands of local Sinhalese, rather than at the hands of the authorities, it did not determine that issue even though it purported to.
Conclusion
The Tribunal’s decision is affected by jurisdictional error. There will be an order that a writ of certiorari issue bringing the decision into the Court to be quashed and a writ of mandamus addressed to the Tribunal requiring it to complete its review according to law. I will hear the parties on costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 5 June 2015
3
4
2