SZWBZ v Minister for Immigration

[2015] FCCA 1410

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1410

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

ADMINISTRATIVE LAW – Allegation that the Tribunal fell into jurisdictional error as its decision was unsupported by any evidence – allegation that the Tribunal fell into jurisdictional error by failing to deal with all of the applicant’s claims – whether the Tribunal overlooked an aspect of the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 474, 476.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Australian Postal Corporation v D’Rozario (2014) 222 FCR 303

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Sinclair v Maryborough Mining Warden (1975) 132 CLR 473

Applicant: SZWBZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 315 of 2015

Judgment of: Judge Smith

Hearing date: 30 April 2015

Date of Last Submission: 7 May 2015

Delivered at: Sydney

Delivered on: 29 May 2015

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Mr J. Pinder, Minter Ellison

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 315 of 2015

SZWBZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under s.476 of the Migration Act 1958 (“Act”) in respect of a decision of the second respondent (“Tribunal”) made on 31 January 2015. The Tribunal’s decision was to affirm 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 12 August 2012. On 12 December 2012 he lodged an application for a protection visa claiming that he feared persecution in Sri Lanka for reason of his Tamil race, his membership of a particular social group comprising of the Sri Lankan Tamils and Tamils from the North East of Sri Lanka as well as for his real and imputed political opinion arising from his race or his former residence in a predominantly Tamil region. He claimed that his fear was exacerbated because he had fled Sri Lanka illegally and, if returned there, would have unsuccessfully applied for asylum.

2. The basis for the applicant’s claims may be divided temporally in two: first, the period during the civil war in Sri Lanka; and secondly, the period after that civil war had ended. In respect of the first period, the applicant claimed that he came from an area in Sri Lanka which was controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) and that the Sri Lankan authorities were suspicious of young Tamil men from those areas as they considered them either LTTE members or supporters. He said that his family had been displaced during fighting in 1995 but that he returned to his home area in 1997 after he had married. At that time he said he came under suspicion of being a member of the LTTE because he had returned to Jaffna from an area that had still been under the control of the LTTE. Later that year, he said that he was interrogated by the Army at a camp and tortured while being questioned about LTTE activity. He was then moved to Colombo where he was further beaten and accused of being an LTTE member. He was released from detention when the court determined that he was innocent of being an LTTE member and he moved back to his home area with his family.

3. However, he was again detained in December 1999 until January 2000 by the LTTE and upon release, once more came under the attention of the Sri Lankan Army. He was regularly beaten and interrogated.

4. At around this time the Eelam People’s Democratic Party (“EPDP”), a pro-government paramilitary force, was formed and took an interest in the applicant, beating him and demanding information about the LTTE. The applicant claimed that the EPDP would send a white van to his house to collect him for interrogation and torture sessions. The applicant travelled illegally by boat to India to escape and lived there with his family until 26 August 2011.

5. After the civil war in Sri Lanka ended in 2009 and he was told that Sri Lanka had returned to being relatively peaceful, the applicant returned to Sri Lanka from India in August 2011. He claimed that the EPDP and the Sri Lankan Army continued to believe that he was a member of the LTTE. He said that he tried to return to fishing in order to support his family but that when he applied for a pass from the Navy in order to do so, the EPDP informed the Navy that he was a former LTTE member and on that basis the applicant was refused a pass to go to sea as a fisherman.

6. On 30 January 2012 the applicant returned to India, fearing that his previous problems were restarting again. He stayed there until February 2012. He claimed that in the meantime his family had been targeted by the EPDP because he had left Sri Lanka. He returned to Sri Lanka and arranged with his brother and cousin to flee together to Australia.

7. On 23 September 2013 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for review of that decision. The applicant attended a hearing conducted by the Tribunal on 8 December 2014. After the hearing the applicant’s advisers made written submissions to the Tribunal in support of the applicant’s claims. In addition, the applicant sent the Tribunal a statutory declaration made by him in which he stated that since he had left Sri Lanka his wife had been visited by the EPDP and that a friend who had been forcibly returned to Sri Lanka from Australia had not been heard from by his family.

8. The Tribunal made its decision on 31 January 2015 affirming the decision of the delegate.

9. The Tribunal made the following findings:

   a)the applicant was detained by the army in the North of Sri Lanka in the period from April to September 1997 during which time he was regularly beaten;

   b)the applicant was prosecuted with being a member of the LTTE but that prosecution was not successful;

   c)the applicant was detained by the LTTE upon return to the North of Sri Lanka but was released after a month and the LTTE had no further interest in him after his release;

   d)the applicant was not, as he had claimed, required to report regularly to the army and was not beaten by the army rather, he was of no interest to the Army after 2000;

   e)in the period 1999 to 2007 the applicant was not detained and tortured by the EPDP or taken by them in a white van as claimed;

   f)it did not accept that, in August 2011 upon return from India, he was unable to return to his work because the EPDP refused to allow him to do so;

   g)the applicant subsequently bought two boats in order to start fishing but was unable to obtain the necessary pass to enable him to do so;

   h)the applicant returned to India on 30 January 2012 and then returned to Sri Lanka one month later;

   i)the applicant’s return to Sri Lanka at this point was inconsistent with his claimed fear of harm from the authorities;

   j)it accepted that the applicant returned to India one month after his boats were confiscated, that his brother and brother-in-law had been arrested, that he returned to Sri Lanka to help them out, that he reported to the EPDP on his return and that the brother and brother-in-law were released, and that after their release there was no further harassment of them; and

   k)the applicant had not been harassed by the Army or the LTTE for supplying water to both sides at different times.

10. The Tribunal referred to information contained in reports from the Department of Foreign Affairs and Trade to the effect that the risk to Sri Lankan Tamils had substantially reduced since the end of the civil war and then stated at [64]:

    The applicant was last detained by the Army in 1997; he was last detained by the LTTE in 2000; he was able to work in [the North of Sri Lanka] with (sic: without) any significant problems from 2000 to 2007; he has no criminal or political profile; he has a court document demonstrating that a charge of being a member of the LTTE did not succeed. I do not find that there is anything about the applicant’s profile which suggests that, as a Tamil, he faces a real chance of serious harm if he returns to Sri Lanka. I find that this is supported by the country information referred to above.

11. The Tribunal went on to state that as the applicant’s only link to the LTTE was that he had been forced to work on an occasional basis from about 1992 to 1997 and, as that was over 15 years ago, he had no fear of persecution for reason of being an imputed supporter of the LTTE.

12. The Tribunal also found that the applicant did not have a well-founded fear of persecution for reason of being a member of any of the posited particular social groups in light of the information about such groups and that, in respect of the applicant’s illegal departure from Sri Lanka, any harm that he might suffer upon return would be as the result of the non-discriminatory enforcement of the law of general application. In particular the Tribunal found that there was nothing about the applicant’s profile which suggested that, as an illegal deportee or a failed asylum seeker, he faces a real chance of serious harm upon return to Sri Lanka.

13. The Tribunal then considered each of the applicant’s fears of serious harm both individually and cumulatively and concluded that the applicant did not have a well-founded fear of persecution for a Convention reason in Sri Lanka and that he did not satisfy the criterion under sub-s.36(2)(a) of the Act. On the basis of the same factual findings, the Tribunal concluded that there was no real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka and so failed to satisfy the criterion in sub-s.36(2)(aa).

14. For those reasons, the Tribunal affirmed the decision of the delegate of the Minister.

Consideration

1. In his application for review of the applicant wrote that “RRT decision is unsupported by any evidence” and “RRT did not fully deal with my problems”. At the hearing, the applicant said that what he told the Tribunal was true and that he did not provide false documents to it. He further said that in 2011 he did have problems in Sri Lanka.

Ground 1

1. As the jurisdiction of this Court is found in s.476 of the Act as understood in light of s.474 of the Act, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The Tribunal’s “core function” is to review the decision of the delegate. The meaning of the word “review” depends entirely upon its context. Here, where the Tribunal, for the purposes of the review, may exercise all the powers of the delegate and has its own powers and obligations in respect of obtaining material and holding a hearing, the obligation to review requires it, on the material before it, to consider whether it is satisfied that the applicant meets the criteria for the grant of a protection visa. The Tribunal was not satisfied that the applicant had met the criteria for the grant of a protection visa. This means that the question for the Court is whether that lack of satisfaction was relevantly affected by error.

2. In this context, to say, as the applicant does, that there was no evidence to support the Tribunal’s decision does not entirely address the question of whether that decision was affected by jurisdictional error. A decision-maker does not necessarily require “evidence” before he or she reaches a state of lack of satisfaction. In any event, the “no evidence” ground of judicial review is more apt when focused upon an anterior finding of fact. The finding of fact made without evidence can amount to an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483 as cited in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355-356. However, given the different context in which those cases were decided, such statements do not necessarily “go the distance”: Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at 318 [50] per Jessup J.

3. The Tribunal’s decision was based on findings of fact which were in turn based upon two matters: first, the Tribunal’s assessment of the applicant’s own evidence including documents produced by him before the Tribunal; and secondly, information from reports from DFAT. The critical findings included those set out in [64] of the Tribunal’s reasons which is set out at [10] above. As can be seen from that paragraph the first four findings are based upon the applicant’s own evidence. The last finding is based upon the country information from a report by DFAT which it set out at [63]. That information supports the Tribunal’s findings in the context of its findings about the applicant’s own evidence. For those reasons, it cannot be said that there was no evidence to support the Tribunal’s decision.

4. The second ground is that the Tribunal did not fully deal with the applicant’s problems. The applicant did not elaborate on this ground at the hearing. Subject to one matter, it is clear that the Tribunal did deal with all the claims made by the applicant. It addressed the applicant’s fear of persecution based upon his Tamil ethnicity, and his membership of particular social groups being Sri Lankan Tamils, Tamils from the North or East of Sri Lanka, and Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia.

5. The potential qualification to this arises from the fact that, at [59] of its reasons, the Tribunal accepted that the applicant was unable to obtain the necessary pass to enable him to start fishing in order to earn money. It will be recalled that the reason for which the applicant claimed that he was denied such a pass was that the EPDP informed the Navy that he was a former LTTE member. However, the Tribunal did not expressly reject that claim. That fact raises the possibility that the Tribunal had either overlooked that aspect of the applicant’s claim or considered that the denial of a pass in order to be able to go fishing could not amount to persecution. This was not a matter raised by the applicant before me; however, as the applicant was unrepresented, I raised it with the Minister and gave the parties leave to file written submissions in respect of it.

6. The Minister submitted that the critical finding by the Tribunal in respect of this issue was that when the applicant returned from India to Sri Lanka in 2012 he was not at risk of harm from the EPDP. This finding was based upon the applicant’s own claims that when he returned to Sri Lanka he approached the EPDP seeking the release of his brother and brother-in-law. Importantly, not only did the EPDP comply with the applicant’s request, but after that time there was no further harassment of his brother, his brother-in-law or himself. The Minister submitted that those findings provided a logical basis for the Tribunal’s conclusion that the applicant did not face a real chance of serious harm from the EPDP upon return to Sri Lanka.

7. The matter that concerned me was that the Tribunal appeared to have left open the possibility that the applicant would again be denied a pass to enable him to go fishing and thus to earn a livelihood and to support his family. However, I accept the Minister’s submission that the basis of that possibility was conclusively dealt with by the Tribunal’s finding that the applicant did not face any risk of harm from the EPDP and, just as importantly, that that finding was open to it on the basis of the applicant’s evidence about what had occurred when he returned from India to Sri Lanka in 2012.

8. For those reasons, although the Tribunal’s reasons could have been better articulated, I find that the Tribunal properly addressed itself to the questions raised on the review and that it did not fail to consider any part of the applicant’s claims.

Conclusion

1. The Tribunal’s decision was not affected by jurisdictional error. The application must be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 29 May 2015