SZWCD v Minister for Immigration
[2018] FCCA 2223
•2 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWCD v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2223 |
| Catchwords: MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.26, 36, 425, 474, 499 |
| Cases cited: SZWCD v Minister for Immigration & Anor [2015] FCCA 526 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZWCD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 332 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 2 July 2018 |
| Date of Last Submission: | 2 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms K. Morris of Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.
The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 332 of 2015
| SZWCD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Sri Lanka who arrived by boat at the Cocos Islands on 29 June 2012. On 27 November 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity and his membership of the particular social group “failed Sri Lankan asylum seekers”. On 15 July 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.
This proceeding is the second such proceeding relating to the applicant’s application before the Court. A previous decision of this Court dated 5 March 2015 (SZWCD v Minister for Immigration & Anor [2015] FCCA 526) dismissing the applicant’s application, was set aside by consent in the Federal Court of Australia on 13 August 2015 and the matter remitted to this Court for determination of the applicant’s application for judicial review.
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.
For the reasons which follow, the application will be dismissed.
BACKGROUND FACTS
The applicant’s written claims were set out in his written statement dated 6 November 2012 and in submissions to the Tribunal dated 3 June 2013 and 27 November 2013.
The applicant also provided oral evidence at his entry interview on 25 August 2012, at a departmental interview on 14 May 2013 and at a Tribunal hearing on 13 January 2015.
In its decision the Tribunal summarised the applicant’s claim for protection as follows:
a)in 2008 his father was beaten by the Sri Lankan navy. They also discriminated against his father in the issuance of fishing permits and curfews, which made it difficult to earn a sufficient income;
b)because of these issues, the applicant obtained work at a prawn farm in December 2011;
c)in February 2012 he discovered four or five Sinhalese men stealing from the prawn farm. These men started to target him. They sabotaged the farm’s electrical system and chased him four or five times, trying to hit him with sticks;
d)fearing for his life, the applicant quit his job. The men then came to his house looking for him. They later threatened him in the street and told his father that they would kill him (the applicant);
e)he feared harm and mistreatment from the Sri Lankan navy;
f)he feared arrest, detention, torture or death because of his Tamil race, imputed political opinion and because of his membership of the particular social groups comprised of young Tamil males and failed Sri Lankan asylum seekers;
g)he feared that if returned to Sri Lanka he would be detained and questioned upon arrival for departing the country illegally and for having sought asylum in a Western country; and
h)he was at risk of persecution because of cumulative factors including his Tamil ethnicity, his lack of education and limited skill set, his illegal departure and his status as a failed asylum seeker from the West.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is 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.
For the following reasons, the Tribunal found that the applicant had fabricated his claims of past harm:
a)while the Tribunal accepted that Tamil fishermen such as the applicant’s father faced discrimination and harassment by the navy during the civil war in relation to the issue of fishing permits, it did not accept, based on country information, that the applicant or his father had been subjected to harm, mistreatment or discrimination in relation to their fishing since the end of the war. Consequently, the Tribunal did not accept that the applicant had been unable to earn a living or that he had been forced to change jobs. The Tribunal did not accept that the applicant faced a real chance of serious harm as a result of fishing licence issues, curfews or other restrictions;
b)in relation to the thefts at the prawn farm:
i)despite prompting from the Tribunal, the applicant’s evidence about this incident was vague, lacking in detail, general and repetitive;
ii)the applicant changed his story when the Tribunal expressed concerns or doubts about certain aspects of his evidence including, in particular, how far away he was from the thieves, his hours of work and whether his shift overlapped with a colleague;
iii)the applicant claimed in his 2014 statement [sic] that he saw the thieves sorting the prawns out of a net and stealing them, a “key detail” which had not been included in his 2012 statement or mentioned during his departmental interview in 2013. In the Tribunal’s view, this account was very different from the one he had provided in his 2012 statement, which was that he [had seen some men standing and talking and] suspected that they were responsible for the theft. The Tribunal found that the applicant had added to and changed his account, which reinforced its view that he was not recalling an event from memory;
iv)the applicant’s account about resigning his job – namely that he stopped going to work and did not tell his parents why, nor did his parents ask – was vague and lacking in credibility; and
v)the applicant claimed that his employer came to his house to ask him why he had not come to work. However, he could not recall, even as an estimate, when this occurred;
c)the applicant’s account about the electrical fire lacked credibility in a number of respects and his description of the incident was vague, lacked detail and changed in response to the Tribunal’s concerns;
d)the applicant’s claim that he was chased by the thieves four or five times lacked credibility and was far-fetched:
i)his description of these events lacked detail. He did not know when or at what time of night they occurred, other than that they had occurred in February;
ii)in the Tribunal’s view, the applicant had no basis upon which to say or believe that these men wished to kill him because they thought he had reported them for stealing prawns, especially given his claim that they had run away from him during the first encounter, which suggested that they were scared of the applicant or of discovery by him;
iii)it also lacked credibility that the men would return just to kill the applicant and not to steal prawns, particularly given that the ponds had been left unattended each time the applicant had run away; and
iv)the applicant’s main job had been to protect the prawn farm and yet he did nothing about the thefts. The applicant’s explanation that he did not want to make his employer angry or be blamed for the thefts was at odds with his main duties and the purpose of his employment;
e)as for the applicant’s claim that the thieves came to his house and attacked him on the street:
i)his description of these events had been vague and lacking in detail;
ii)the applicant claimed that the men had grabbed him and threatened to kill him, “crucial” details which had not been included in his 2012 statement. These details were also inconsistent with his claim, made in his 2012 statement, that he had not been able to understand what the men had been saying but had understood from their gestures that they were threatening him;
iii)also omitted from the applicant’s 2012 statement was the claim that his father had been kicked and punched during one of the home visits; and
iv)the applicant’s explanation of how the thieves found his address lacked credibility and he appeared to be making up explanations as he went along.
The Tribunal considered the issues surrounding the applicant’s claims regarding his race, political opinion, and membership of a particular social group to be substantially the same, both independently and cumulatively. Relevantly for the present proceeding, while the Tribunal accepted that the applicant would be charged under Sri Lanka’s Immigrants and Emigrants Act for his illegal departure, it was not satisfied that this gave rise to a well-founded fear of persecution or the engagement of Australia’s complementary protection obligations because:
a)based on country information the Tribunal was satisfied that the applicant would be bailed immediately (unless he arrived on the weekend or on a public holiday) on his own recognisance or with a family member as guarantor;
b)no returnee who was just a passenger had been given a custodial sentence and the applicant had made no claims of organising the boat departure;
c)the fine which was likely to be imposed on the applicant would not amount to serious harm because he had the capacity to pay it;
d)Sri Lanka’s departure laws were laws of general application and their enforcement did not constitute persecution but prosecution and were not applied in a discriminatory manner against a particular group of returnees; and
e)even if the applicant were held on remand for a short period, the Tribunal did not accept that he would be treated differently and was not satisfied that any problems he might face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand would be aimed at him for a Convention reason. Moreover, the Tribunal considered those factors to apply generally and not specifically to persons of Tamil ethnicity.
PROCEEDINGS IN THIS COURT
In his amended application the applicant alleged:
1.The Tribunal committed jurisdictional error in assessing whether there would be intention on the part of the authorities when he is detained “… would be remanded … pending a bail hearing.” (CB251; RRT at [101]) in considering complementary protection the poor conditions (CB251 at [103]) and did not expressly consider Directions 56.
Particulars
1.1Direction 56 provides that “[i]n performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department … to the extent they are relevant to the decision under consideration.
PAM3: Refugee and humanitarian – Complementary Protection Guidelines
PAM3: Refugee and humanitarian – Refugee Law Guidelines”
1.2Section 18 of the PAM3: Refugee and humanitarian – Complementary Protection Guidelines (Complementary Protection Guidelines), headed “Intentionally inflicted pain or suffering”, states: “In certain circumstances, it may be appropriate to infer an intention to inflict severe pain or suffering if it is evidence that such pain or suffering was or may be knowingly inflicted.
1.3The Tribunal stated (at [103]) that it was not satisfied that “the poor conditions” were not intentionally inflicted on detainees.
1.4The Tribunal did not consider whether it was “evident that such pain or suffering was or may be knowingly inflicted” and did not consider whether it was “appropriate to infer an intention to inflict severe pain or suffering”.
1.5To that extent, the Tribunal did not take account of the Complementary Protection Guidelines and failed to comply with the Direction 56 and s.499(2A).
2.The Tribunal committed jurisdictional error because its credibility finding at (CB237-41 at [13]-[46]) of the Tribunal’s reasons in relation to Applicant’s claims/monitoring/surveillance [13]-[46]. The Applicant was not on notice that the findings of the Delegate may be departed from.
Particulars
2.1The Tribunal has not put the Applicant on notice for the purposes of s.425 of the Act.
2.2On this basis, the Tribunal found that the applicant was inconsistent in his evidence and thereby found adversely in relation to his credibility regarding his claims (at [13]-[46]).
2.3The issue is determinative issue on which decision turned. The Applicant was not on notice.
2.4The Tribunal committed jurisdictional error.
3.The Tribunal committed jurisdictional error in consideration of social group.
Particulars
3.1The Tribunal considered PSG – young Tamil male (CB243-44 at [54]-[64]) and failed asylum seeker from Western country (CB245-50 at [68]-[95]).
3.2On this basis, the Tribunal failed to assess an important attribute – that the Applicant was from North/East area of Sri Lanka (Udappu).
3.3The Tribunal committed jurisdictional error.
Ground 1
The applicant alleged that the Tribunal failed to have regard to relevant portions of Procedures Advice Manual 3 (“PAM3”) as required by Ministerial Direction 56, pursuant to s.499 of the Act.
First, no copy of PAM3 was tendered and for that reason alone the ground is not made out.
Secondly, the applicant did not demonstrate that any particular inference was required by the guidelines to be drawn by the Tribunal. Assuming that particular 1.2 of the first ground of the amended application is accurate, it is sufficient that the Tribunal turned its mind to the relevant question.
Thirdly, it should be noted that in paras.47 and 96 of its decision record, the Tribunal specifically referred to PAM3. In those circumstances, the applicant had a considerable task to show that, notwithstanding those statements, the Tribunal did not, in fact, consider the relevant parts of the manual. In this case, the applicant has not discharged that onus. In para.103 of its decision record, the Tribunal used forms of words which plainly showed that it understood the tests it had to apply. The fact that the Tribunal did not, when expressing its conclusions, give a verbal nod to the wording of PAM3 does not mean that the manual had been disregarded.
At the end of the day, the relevant portion of the manual served only to provide guidance. Inferences which might be drawn from particular evidence, specifically intention to inflict pain or suffering, might be inferred from evidence pointing to such a fact. In this case, the Tribunal said that it had looked at the evidence and concluded that the relevant intention was absent. It did not need to do more. The applicant has not persuaded me that a breach of the Ministerial direction has occurred.
Ground 2
The applicant contended that a matter which had not been an issue following the delegate’s decision became an issue at the Tribunal review and, in breach of s.425 of the Act, he had not been alerted to this. Despite the existence of particulars of this allegation, the most relevant particular was not included; namely, an identification of the issue that the applicant says became live at the Tribunal hearing. In the absence of that detail, the allegation lacks meaningful substance and so must fail.
Looking further, at p.9 of the delegate’s decision which is found at p.124 of the Court Book which was exhibit A, the delegate set out the matters apparently relevant to the present allegation, some of which it accepted and some of which it rejected. Importantly, the delegate found that the applicant was not credible and rejected most of his claims on that basis. The only matter which stands out as having been accepted by the delegate, but not really accepted in similar terms by the Tribunal, was the applicant’s claim to have seen four or five Sinhalese men at night at the prawn farm.
As I said, the Tribunal did not expressly accept that fact. However, neither did the Tribunal reject the men’s presence. Relevantly, the issue was, on the assumption that those men were at the prawn farm on the night the applicant alleged that he saw them, what they were doing there and it is clear from paras.23 and 25 of the Tribunal’s decision record that the Tribunal’s concerns on that score were made clear to the applicant. I am not persuaded that the Tribunal put in issue a matter which the delegate had decided and that it created a new but unannounced issue as a consequence.
Ground 3
The third ground of the amended application alleged that the Tribunal failed to consider a claim which was available to the applicant, and implicitly, which was also sufficiently clear on the material before the Tribunal that it should have been considered, namely that the applicant came from the north-eastern area of Sri Lankan, Udappu. To the extent that it is necessary to be explicit, it should be made clear at this point that there was no express claim made by the applicant to fear persecution by reason of his Udappu origin, or at least none which has been drawn to my attention.
In those circumstances, the question is whether the claim arose sufficiently clearly on the material before the Tribunal that the Tribunal was nevertheless obliged to consider the claim. It is not apparent to me that it was.
The applicant was represented at the Tribunal stage and I infer from the final sentence of para.7 of the Tribunal’s decision record that the applicant’s representative accompanied him to the Tribunal hearing. The applicant’s advisers also filed with the Tribunal lengthy written submissions dated 27 November 2013, to which reference was made earlier. The applicant has not identified the basis upon which it might be said that a claim of the sort now alleged was perceptible in those lengthy written submissions or in what he said to the Tribunal.
Most relevantly, it might be observed that in para.180 of their written submissions, the applicant’s advisers contended that the applicant risked persecution because of:
a)his Tamil ethnicity;
b)his lack of education and limited skill set;
and because:
c)he had departed Sri Lanka illegally on a boat trip and was unaccompanied; and
d)he had fled to the West and sought asylum.
That encapsulation of the applicant’s claims made no reference to Udappu.
In the absence of reasons to think otherwise, in circumstances where the applicant was represented, it must be concluded that the claims which the applicant pressed before the Tribunal were those which were expressly articulated by his representatives and that any claims which might otherwise have been available but which were not expressly propounded were not pressed by him before the Tribunal.
It has not been demonstrated that a claim of the sort now propounded was expressly made to the Tribunal. In the circumstances therefore, the applicant has not made out the third ground of his amended application.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 16 August 2018
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