SZWDH v Minister for Immigration

[2015] FCCA 2396

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWDH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2396

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether Tribunal applied wrong test – whether Tribunal was wrong in comparing the applicant’s circumstances to others – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 91R(2), 424A

Minister for Immigration & Border Protection v WZAPN (2015) 89 ALJR 639
Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190

Applicant: SZWDH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 404 of 2015

Judgment of: Judge Smith

Hearing date: 12 August 2015

Date of Last Submission: 12 August 2015

Delivered at: Sydney

Delivered on: 12 August 2015

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitor for the Respondents: Mr E. Elliott, DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount $6,300.

3. The name of the second respondent be amended to Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 404 of 2015

SZWDH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant is a young man from Sri Lanka who has applied for a protection visa to enable him to stay in Australia and avoid persecution on return to his home country. A delegate of the Minister rejected his claims, and on review of that decision so too did the Refugee Review Tribunal. The applicant now seeks the issue of constitutional writs in respect of the Tribunal’s decision on the basis that the Tribunal failed to properly exercise its power of review. In order to understand the grounds raised in the application it is necessary first to set out the bases for the applicant’s claims for asylum and then the way in which the Tribunal dealt with that claim.

The applicant’s claims for protection

1. The applicant is of Tamil ethnicity and a Hindu. He claimed that since 2010 four to five Sinhalese Buddhist extremists had wanted to take over the Hindu temples in his home town. On one occasion a large number of them, and members of the Sri Lankan Army and police, came into a temple to try to stop the Hindus from praying. All the animal prayer items were taken, but shortly afterwards people returned to the temple and normal prayer routines were resumed. The applicant was not in the temple at the time. 

2. He claimed that in 2011 Tamils in his town decided to build a monument on a different temple. This resulted in a rally of Sinhalese Buddhist extremists, and the police who attended to protect the protesters. Although nobody was injured, whenever the Tamils would enter the city they were beaten and robbed. On 9 June 2012 the applicant claimed that he was cycling from work to home when he saw a Buddhist monk and two thugs talking to his mother. They were asking his mother to sign a petition to stop prayers in the Hindu temple.

3. The applicant grabbed the petition, tore it to pieces, and when the two thugs hit him he hit them back and they left with the monk.  He claimed that the thugs were paid by a local politician who was known to be a violent person. The following day, two people went to see the uncle to enquire about the applicant. The applicant also claimed that he was involved in two other incidents of violence. The first was when he saw some friends of his being attacked by a number of unknown others but he left the area and was not involved.

4. The second was that when he was on his way home he was attacked by five men from the local area who were drunk and who robbed him. As a result of all this the applicant fled to Australia. He claims that he will be killed, tortured, kidnapped or seriously harmed if he returns to Sri Lanka, due to being a Hindu, a Tamil, someone who has hit a politician’s thugs, and a failed asylum seeker from Australia. On 21 February 2014 a delegate of the Minister decided to refuse to grant the applicant a protection visa, and the applicant applied to the Tribunal for a review of that decision.  

5. The applicant attended a hearing conducted by the Tribunal, and the Tribunal handed down its decision to affirm the delegate’s decision on 28 January 2015.

The Tribunal’s decision

1. The Tribunal noted that the applicant claimed that there were three incidents that involved him.  The first incident was the one in which he saw his friends being attacked.  The Tribunal found that any harm in this regard was vicarious and since he could not give any greater description, it was not satisfied that there was any racial, political or any other Convention-related[1] motive in the attack. The second incident was when the applicant claimed to have been attacked and robbed.  The Tribunal found that the significant and essential reason for the attack was robbery, meaning again that there was no Convention-related basis for it.  In relation to the third incident, namely that the applicant had hit two thugs associated with a local politician, the Tribunal found that it was implausible and did not occur.

   [1] Meaning that the harm feared was not for one of the reasons referred to in Article 1A(2) of the Convention Relating to the Status of Refugees done at Geneva in 1951 as amended by the Protocol Relating to the Status of Refugees done at New York in 1967.

2. The Tribunal then went on to consider the country information concerning the treatment of Tamils by the authorities and others in Sri Lanka. It accepted that he may, as a Tamil, suffer some discrimination but accepted reports to the effect that such discrimination did not amount to harm of such gravitas as to constitute serious harm. For those reasons it found that the chance of serious harm to the applicant for reasons of race was both remote and insubstantial now and in the reasonably foreseeable future.

3. The Tribunal then considered the claims based upon the applicant’s religion. It found that the protests at the temple relied upon by the applicant concerned animal welfare and was an attempt to block the sacrifice of a large number of animals, mainly goats and chickens. In light of that, and the fact that the ceremony occurred only once a year and had been allowed by the Supreme Court in Colombo to continue, the Tribunal found that the applicant was not being denied the right to practice his faith.

4. In respect of the new monument, the Tribunal accepted independent material to suggest that the essential and significant reason for the protest was to conduct an archaeological survey on the site and not to prevent Hindus from worshipping. It accepted that the incidence of some extremists had created a situation of harassment in some instances but the applicant’s freedom of religion would not be compromised in the reasonably foreseeable future.

5. The Tribunal next considered the claim relating to political opinion. It noted that this was based upon two facts: first, the applicant’s opposition to the politician whose thugs he had beaten; and, secondly, because he had sought asylum in Australia.  In respect of the first of these, the Tribunal found that the applicant had no interaction with that particular politician, or indeed any other politician, either adverse or neutral. Further, in relation to the robbery it rejected any connection with the local politician but found that even if there were a connection between the applicant’s attackers and the politician that would not create an imputed political opinion in respect of the applicant.

6. The Tribunal found that the applicant’s claim for asylum in Australia would not indicate a profile in opposition to the government of Sri Lanka. That was because of the large numbers of people returning from Australia having failed in their asylum claims and the evidence as to the way in which they are treated upon return. Thus, given the applicant’s low profile, and his lack of involvement in any political action or association, either positive or adverse, the Tribunal found that the applicant did not have a political opinion, actual or imputed and would not have one in the future. 

7. The Tribunal then considered the applicant’s claim to fear harm as a member of a particular social group, namely, failed asylum seekers returned to Sri Lanka. It found that the applicant would face checks on arrival in Sri Lanka and that these may take several hours. However, on the advice of the UNHCR and the Department of Foreign Affairs and Trade, it found that, given the applicant had a profile of no significance and was not of concern for reasons of his political opinion, he would face no real chance of serious harm as a consequence of his status as a failed asylum seeker.

8. The Tribunal accepted that as a consequence of the applicant’s illegal departure from Sri Lanka he would be charged upon return there and would likely be held for up to two weeks pending an appearance before a magistrate. However, it found that this would be conducted pursuant to a law of general application, not as a consequence of targeting for any other reason. Further, it found that, although the prison conditions were crowded and wanting in terms of Australia’s standard of hygiene, they would not be cruel or unusual and so he would not face harm sufficient to amount to serious harm within the meaning of s.91R(2) of the Migration Act 1958.

9. For those reasons, the Tribunal found that the applicant did not satisfy the criterion in sub-s.36(2)(a) of the Act and turned to consider the criterion in sub.s.36(2)(aa). In this respect the Tribunal accepted that the applicant came from a poor background and that employment for him was at a menial level and possibly difficult to find. It already noted that he may be held in detention for a period of up to two weeks. However, it found that no hardship as a result of those two matters was the result of an intent or discrimination and that he was not at risk of being deprived of his life, suffering torture or being subjected to other cruel or inhumane treatment, or degrading treatment or punishment within the meaning of the Act. 

10. Further, in respect of the attack upon him by the drunk men, he was not satisfied that he would face further such incidents at the level of harm described in s.36(2A) of the Act. For those reasons, the Tribunal was not satisfied that the applicant satisfied the criterion in sub-s.36(2)(aa) and therefore that he did not satisfy the criteria for the grant of a protection visa and affirmed the decision under review.

Consideration

1. The amended application contains four grounds.

Ground 3

1. The third ground concerns the Tribunal’s consideration of the period of detention likely to be faced by the applicant on return to Sri Lanka. The applicant does not press that ground in light of the recent decision of the High Court in Minister for Immigration & Border Protection v WZAPN (2015) 89 ALJR 639.

Ground 1

1. The first ground focuses, at least initially, on the finding by the Tribunal at [153] of its reasons, that the first incident relied upon by the applicant was not for reasons of race, religion or politics as claimed by him:

   [153]In regard to the three incidents of concern the applicant put to me at the Tribunal hearing. I finding the first did not involve him at all and his description was such that I remain unsatisfied that it was for reasons of race, religion or politics.

2. The applicant argues that the Tribunal applied the wrong test in relation to the Convention nexus in that finding, as well as the other attacks that occurred in the area. He relies on the fact that the Tribunal accepted that the applicant and his friends were attacked in the area, that the applicant claimed that there were up to five other incidents of attacks and that the attackers may have had some connection to local politicians. He argues that the Tribunal did not take into account the tension in the area regarding religion, ethnicity and different religious backgrounds, or the fact that the attackers called the applicant “Tamil”, or the motivation by the local politician.

3. Although the applicant argues that these matters reveal that the Tribunal applied the wrong test, in my view the real tenor of the ground is that the Tribunal ought to have found that there was a Convention reason for the attack on the applicant. Understood in that way, it is an attack on the merits of the Tribunal’s decision. The reasons for which I find that the asserted errors were not made by the Tribunal are:

   i.the fact that the applicant’s friends were attacked could not, without more, require a conclusion that there was any religious or other Convention-based motivation for that or any other attack. The applicant’s own version of the event did not contain any facts that related to the Convention, and it may be noted that he was not involved in it. For that reason it was open to the Tribunal to find that there was no Convention-based reason involved in the attack and not to expressly consider it in connection with the reasons for any possible future harm to the applicant;

   ii.while the Tribunal accepted that the applicant was accosted, it found that the significant and essential reason for the attack was robbery. That does not mean that the Tribunal was not cognizant of, nor that it rejected, the claim that the attackers had called out “Tamil”. That fact does not of itself, however, require any conclusion as to the motivation for the attack. Thus it was open to the Tribunal, particularly in light of the fact that the attackers were drunk and asked for money, to find that there was no Convention basis for the attack;

   iii.the fact that the Tribunal was willing to accept that the thugs who attacked the applicant might have had a contact with political figures was made in the context where it expressly rejected the contention that this engaged the Convention. It found that the attack was opportunistic and the assertion that it was for reasons of race, religion or political opinion was baseless and speculation; and

   iv.the claim that the Tribunal did not consider the politician’s motivation leads nowhere. First, the applicant’s evidence was that the five men were not directly linked to that politician in any event and that the only link was that they were of the same party, or connected to another person of the same party.  In any event, this incident was the only claim that was accepted by the Tribunal that had any link to the politician at all, and the Tribunal expressly found, as it was entitled to do on the material, that there was no political motivation for the attack.

4. For those reasons, the Tribunal’s conclusions in relation to the motivation for the attack on the applicant were not affected by any jurisdictional error and the first ground is rejected. 

Ground 2

1. The second ground in the amended application appears to concentrate on the Tribunal’s reasons concerning the ability of the applicant to find work upon return to Sri Lanka in light of his poor background. The following paragraph in the Tribunal’s reasons is pertinent:

   [250]However, those other circumstances of many people in his country and the evidence before me is such that I am satisfied that nothing in this regard is the consequence of any intent to deprive.

2. The applicant argues that it was wrong for the Tribunal to determine the matter by making comparison with others. That submission not only misunderstands the Tribunal’s reasons, but also the relevant legislation.  The Tribunal was, at this point in its reasons, considering the complimentary protection criterion in sub-s.36(2)(aa). That criterion required the Tribunal to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.

3. Significant harm is defined in s.36(2A) as including arbitrary detention and deprivation of life, death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Clearly enough, the first three of these do not apply in this case. Both of the last two phrases “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” are further defined in s.5 of the Act. Relevantly, both phrases require that the harm referred to be intentionally inflicted.

4. It is in light of that, that the Tribunal’s finding that there was no intent to deprive was made in connection with the applicant’s ability to subsist.  The fact that many other people in the country are poor is relevant to the existence of whether there is an intention to inflict poverty.  Further, whether or not other people in Sri Lanka suffer from the same harm as the applicant is relevant to sub-s.36(2B)(c) of the Act.  That paragraph provides that there is taken not to be a real risk that the non-citizen will suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally, and is not faced by the non-citizen personally.

5. For those reasons this ground is rejected.

Ground 4

1. The fourth ground is that the applicant was denied procedural fairness because the Tribunal relied upon its own research in respect of the politician, but the applicant was not given an opportunity to respond to the information obtained by it. 

2. This ground springs from [186] of the Tribunal’s reasons, in which the Tribunal stated:

   My own research into [the politician’s] history leads me to accept that this politician is, as the adviser submits, of questionable character.

3. This paragraph reveals that, based on its own research, the Tribunal accepted the contention by the applicant that this particular politician was bad news. There is nothing in the material before me to suggest the Tribunal had any information about the politician that was adverse to the applicant. For that reason, there would have been no obligation under the general law relating to procedural fairness for the Tribunal to reveal the information to the applicant for his comment. In Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223 Rares and Jagot JJ said, at [27]:

   … If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. …

   (Emphasis added)

4. Further, and more importantly, in the context of a review by the Tribunal, there is generally no obligation to give the applicant an opportunity to comment upon information that is not specifically about him and, in any event, which the Tribunal does not consider “would be the reason or part of the reason for the decision”: s.424A. Thus, any information that is not a rejection, denial or undermining of the applicant’s claims does not have to be given to the applicant to comment: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at [17].

5. For those reasons the fourth ground is rejected.

Conclusion

1. There is a jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 2 September 2015