SZWDN v Minister for Immigration

[2017] FCCA 2454

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWDN v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2454

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant applicant a Protection visa – whether Tribunal omitted to consider integers of applicant’s claims for protection – whether the Tribunal took into account irrelevant material – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

Minister for Immigration and Border Protection v WZAPN [2015] HCA 22

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774

WZAPN v Minster for Immigration and Border Protection [2014] FCA 947

Applicant: SZWDN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 420 of 2015

Judgment of: Judge Manousaridis

Hearing date: 26 September 2016

Date of Last Submission: 26 September 2016

Delivered at: Sydney

Delivered on: 12 October 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Ms S Zarucki of Clayton Utz, Lawyers

ORDERS

1. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 420 of 2015

SZWDN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Sri Lanka, seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. The applicant stated his claims in a statutory declaration that formed part of his application for a Protection visa.[1] The applicant there stated as follows:

   [1] CB66-70

   a)The applicant is a Tamil and a Hindu.

   b)In 2006 the Sri Lankan Army (SLA) came to the applicant’s village after which “we lost our freedom”. The SLA imposed a 6 pm curfew whereby “any movement outside of our homes” was prohibited.

   c)On 10 February 2009 there was a general election and a relative of the applicant’s father stood for the UNP (which I understand is a reference to the “United National Party”). The applicant’s father assisted in the relative’s election campaign.

   d)On 13 February,[2] after the election results were “released”, six Sinhalese men came to the applicant’s house looking for the applicant’s father. The men wanted the applicant’s father to accompany them somewhere, but he refused. The men attempted to take the applicant’s father, but the applicant intervened and an altercation ensued. When neighbours arrived at the applicant’s home in response to the applicant’s mother’s screaming, the men beat the applicant’s father and left.

   e)On the advice of relatives, the applicant’s father agreed to leave for Mullaitivu, and the applicant’s aunt convinced the applicant to go to her house which was one kilometre away because he would be at risk if he remained at his home. The applicant went to his aunt’s house the next day.

   f)On the night after the applicant commenced living at his aunt’s house, a truck containing approximately twenty five Sinhalese men came to the applicant’s house. The men had been drinking and were carrying weapons. The men grabbed and threatened the applicant’s grandfather and demanded he tell them where the applicant’s father was. The men also searched and damaged the applicant’s house.

   g)After his mother informed him of this incident, the applicant contacted a friend in Dubai and arranged to travel to Dubai where he stayed until 23 March 2012. The applicant returned to Sri Lanka to attend his sister’s wedding at a place 700 kilometres from his village. The applicant stayed for ten days and then returned to Dubai.

   h)After the applicant’s visa in Dubai expired, he returned to Sri Lanka on 9 July 2012. The applicant returned to his mother’s house. The night after he arrived, however, there was a prowler in the applicant’s house. The applicant ran away to the forest because he was “very fearful”. Shortly after the applicant fled to the forest, “8 or 9 men forced their way into” the applicant’s house and “they commenced to beat up” the applicant’s brother-in-law. “Apparently they assumed” the applicant’s brother-in-law was the applicant. The attackers eventually acknowledged they had made a mistake and stopped.  They threatened the applicant’s family and said they will find the applicant “one day” and kill him.

   i)After the applicant witnessed the injuries his brother-in-law sustained, and the damage to the house, his brother-in-law arranged for the applicant to leave for Australia.

   j)The applicant fears returning to Sri Lanka because he believes Sri Lankan authorities will not protect him. Police “will not aid Tamils”, but instead “they are assisting the political party and will reveal my whereabouts”.

   [2] The applicant does not specify the year. Presumably it is 2009.

Tribunal’s reasons

1. The Tribunal found the applicant had only a “vague and generalised knowledge of the events he claimed” occurred, and a “poor recollection of events due to his admitted memory failure and memory lapses”. The Tribunal found there were a number of inconsistencies in the applicant’s evidence.[3]

   [3] CB163, [46]

2. In light of that conclusion, the Tribunal made the following findings:

   a)In February 2009 the applicant’s father’s relative (whom the Tribunal described as “a cousin”) “stood for the UNP party”; the applicant’s father assisted the relative in that election campaign; and on election night or shortly afterwards some unknown Sinhalese men came to the applicant’s house looking for the applicant’s father.[4] In an incident that lasted one or two minutes, the applicant’s father was pushed and shoved and threatened, but not beaten or taken away.[5] The applicant’s father did not immediately flee to Mullaitivu, and the applicant did not leave the following day to stay at his aunt’s house.[6]

   b)Twenty five unknown Sinhalese men then attacked the applicant’s parent’s house the night after the unknown Sinhalese men had appeared at the applicant’s parents’ house. The event, however, did not occur in the manner the applicant claimed it occurred.[7]

   c)The applicant went to Dubai and stayed there for three years, but not because of the attack by the Sinhalese men.[8] The applicant did not on the night in 2012 after he returned to Sri Lanka from Dubai run away from his house because of the presence of a prowler. Nor was the applicant’s brother-in-law beaten up.[9]

   [4] CB168, [48]

   [5] CB163, [48]

   [6] CB163, [49]

   [7] CB163, [50]

   [8] CB163, 51

   [9] CB163-164, [52]

3. The Tribunal then considered whether the applicant has a well-founded fear of persecution because he is Tamil and Hindu, and because of imputed links to the UNP based on his father’s support for a relative standing for election in 2009. Relying on country information which it identified in its reasons, the Tribunal was not satisfied the applicant has a well-founded fear of persecution because of his Tamil ethnicity, or because the applicant will be perceived to be a supporter of the UNP,[10] or because he is Hindu.[11]

   [10] CB165, [58]

   [11] CB165-166, [59]. The Tribunal considered this part of the applicant’s claims as part of his Tamil ethnicity.

4. The Tribunal was also not satisfied that the applicant had a well-founded fear of persecution because he is a member of the particular social group of illegal deportees who are also failed asylum seekers. The Tribunal accepted country information that indicated the applicant would be questioned at the airport, and detained and investigated by Sri Lankan authorities. The Tribunal found, however, that it is unlikely the applicant would be detained for more than a few days while investigations are being carried out, and that the most likely penalty the applicant would face for illegally departing Sri Lanka would be a fine. The Tribunal also found that the applicant’s being charged and detained for illegally departing Sri Lanka would be the result of a “non-discriminatory enforcement of a law of general application”.[12]

   [12] CB166, [61]

5. For these reasons, the Tribunal was not satisfied the applicant had a real chance of serious harm for any of the reasons the applicant claimed; and, so it found the applicant was not a refugee under s.36(2)(a) of the Migration Act 1958 (Cth) (Act).

6. The Tribunal then considered whether the applicant satisfied the criterion for complementary protection under s.36(2)(aa) of the Act. The Tribunal considered whether the applicant’s being detained for a few days on his return to Sri Lanka would singularly or cumulatively constitute significant harm. The Tribunal relied on a report issued by the Department of Foreign Affairs and Trade in October 2014 (DFAT report) to the effect that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.[13] The Tribunal concluded that, based on the applicant’s circumstances, and having regard to the DFAT report, there was no real risk that the applicant would suffer significant harm “in terms of s.36(2)(aa) of the Act”.[14]

   [13] CB168, [67]

   [14] CB168, [67]

Grounds of application

1. The applicant, who is not legally represented, filed a further application for review on 17 July 2015 (Further Application). The applicant informed me that he relied on the grounds set out in both the application he filed when he commenced this proceeding on 20 February 2015 and in the Further Application. The applicant also relies on written submissions which he filed on 21 September 2016. I propose to consider the grounds set out in the application as originally filed and in the Further Application. I will also refer to the submissions the applicant made in his written submissions and at the hearing before me.

Ground stated in application as originally filed

1. The application as originally filed contains one ground of application (emphasis in original):

   The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act [sic]

   Particulars

   By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minster for Immigration and Border Protect [sic] & Another [2014] FCA 947 at (30) and (45)

   At paragraph [67] of the decision, the RRT accepted that the applicant would be identified as a failed asylum seeker and as a person who departed illegally;

   Clearly, the Tribunal has engaged in a qualitative assessment of the circumstances of the Applicant’s detention whilst on remand rather than assessing whether the process of being questioned and investigated at the airport and remanded into custody (however brief) would amount to a deprivation of the applicant’s liberty.

2. This ground relies on the reasoning of North J in WZAPN v Minster for Immigration and Border Protection,[15] which in Minister for Immigration and Border Protection v WZAPN,[16] the High Court held was incorrect.[17] For that reason alone, the ground fails.

   [15] [2014] FCA 947

   [16] [2015] HCA 22

   [17] Minister for Immigration & Border Protection v WZAPN [2015] HCA 22

Ground 1 of the Further Application

1. The Further Application contains two grounds. The first ground is as follows:

   The Tribunal erred in not properly considering all integers of the applicant’s claims.

   Particulars

   a.At 34, the Tribunal acknowledges that the applicant’s representative made post-interview written submissions on the 9 February 2015 [sic]. Those submissions are said to have responded to the Tribunal’s observations chiefly concerning the DFAT report of 3 October 2014 and raised a further issue of the applicant’s religion. No where [sic] are the responses to the DFAT report thus raised mentioned or dealt with.

   b.At 59, the Tribunal finds that being a Hindu would not attract persecution without reference to the nature of the evidence provided by the applicant’s representative.

   c.At 66-68, the Tribunal evaluates the so called Complementary Protection provisions of the Act with reference to the applicant. Nevertheless, the only claim evaluated is that related to the applicant’s illegal departure from Sri Lanka and not any of the other claims he made.

Claim made in particular a.

1. The claim made in particular a. concerns paragraphs 21 to 26 of the submissions the applicant’s representative provided to the Tribunal after the hearing (Post-Hearing Submissions). Particular a. states the Post-Hearing Submissions are dated 9 February 2015, but they are dated 9 January 2015.[18]

   [18] Exhibit SCB

2. In the Post-Hearing Submissions the applicant’s former representative submitted that, contrary to the DFAT report “discrimination on the basis of Hinduism as a religion persists to some degree in Sri Lanka, despite the absence of institutionalised persecution as enacted by official governmental laws or policies”.[19] After setting out certain country information, the Post-Hearing Submissions conclude:[20]

   [25] In light of the country information stated above, the applicant’s identity as a Tamil Hindu can expose him to discrimination and harm in a deepening culture of impunity surrounding Sinhalese Buddhist attacks on other religions. This culture of impunity is symptomatic of a larger scheme to reinforce Sinhalese dominance, often at the expense of Tamils such as the applicant.

   [26] We submit that the applicant’s adherence to the Hindu faith is an integral part of his identity as a Tamil. Therefore, an assessment of the applicant’s protection claims necessarily requires the consideration of the cumulative effect of all facets of the applicant’s identity. In this instance, the fact that the applicant belongs to a politically active Tamil family heightens his exposure to attacks of a religious nature.

   [19] Exhibit SCB, [21]

   [20] Exhibit SCB, [15], [26]

3. Contrary to the applicant’s claim made in particular a., the Tribunal did refer to that part of the Post-Hearing Submissions that concerned the treatment of Hindus in Sri Lanka (although it incorrectly stated the Post-Hearing Submissions were dated 9 February 2015). The Tribunal set out the substance of those submissions, namely, that there was discrimination on the basis of Hinduism, and that Hindus such as the applicant are at risk of mistreatment because of a general culture of impunity surrounding “the prosecution of Sinhalese Buddhist attacks against Hindus, Muslims and Christians”.[21] Having referred to the Post-Hearing Submissions, I am, not satisfied the Tribunal did not consider them. On the contrary, I am satisfied the Tribunal considered the Post-Hearing Submissions, and the country information referred to in them concerning the position of Hindus in Sri Lanka, but the Tribunal preferred to rely on the country information contained in the DFAT report. It was reasonably open to the Tribunal to prefer to rely on the information contained in the DFAT report.[22]

   [21] CB161, [34], [35]

   [22] “The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.” - NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin, Lander JJ)

4. The claim made in particular a., therefore, fails.

Claim made in particular b.

1. The applicant claims the Tribunal did not refer to the evidence provided by the applicant’s former representative in the Post-Hearing Submissions in finding the applicant’s being a Hindu would not attract persecution. The evidence I take the applicant to claim the Tribunal did not consider is the country information relating to the persecution of Hindus in Sri Lanka the applicant’s former representative had provided to the Tribunal in the Post-Hearing Submissions to which I have already referred.

2. It is true the Tribunal did not in its reasons refer to the country information the Post-Hearing Submissions identified. That by itself does not disclose any jurisdictional error, however, because the Tribunal’s not expressly referring to that information does not necessarily mean the Tribunal did not consider it. As I have already concluded, the Tribunal referred to and set out the substance of the Post-Hearing Submissions relating to the applicant’s being a Hindu. In those circumstances, it is reasonable to infer, and I do infer, that the Tribunal read and considered the country information on the basis of which the applicant’s former representative made the submissions concerning the persecution of Hindus in Sri Lanka which the Tribunal set out in its reasons for decision; and, as I have already concluded, the Tribunal did not accept that country information, but instead accepted the information contained in the DFAT report. It was reasonably open to the Tribunal to rely on the information contained in the DFAT report rather than on the country information on which the applicant’s legal representative relied.

3. The claim made in particular b., therefore, also fails.

Claim made in particular c.

1. The claim made in particular c. is that the Tribunal considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act only by reference to the applicant’s illegal departure from Sri Lanka.

2. It is true the Tribunal considered separately whether what the Tribunal found may occur to the applicant on his return to Sri Lanka because of his illegal departure from that country would constitute significant harm and, for that reason, result in the applicant satisfying the criterion stated in s.36(2)(aa) of the Act. The Tribunal did so, however, because it had found that what may occur to the applicant on his return to Sri Lanka would be the result of the application of a non-discriminatory law of general application and, thus, would be incapable of constituting persecution for the purposes of s.36(2)(aa) of the Act. Further, the Tribunal considered whether, having regard to the findings it had already made when assessing whether the applicant’s claims fell within s.36(2)(a) of the Act, the applicant satisfied s.36(2)(aa) of the Act. That is apparent from the following passage from the Tribunal’s reasons:[23]

   Having considered the applicant’s circumstances and having regard to the October 2014 DFAT country information, I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act . . .

   [23] CB168, [68]

3. The Tribunal made no jurisdictional error by “referring to its previous findings of fact in this case” because, with the exception of the claim based on the applicant’s illegal departure from Sri Lanka, the applicant’s claims under s.36(2)(aa) of the Act “as articulated could not survive those findings of fact”.[24]

   [24] SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] (Robertson J)

4. The claim made in particular c., therefore, also fails.

Ground 2 of the Further Application

1. The second ground of application stated in the Further Application is as follows:

   The Tribunal erred by introducing irrelevant considerations.

   Particulars

   a.At 55, the Tribunal lists characteristics of people at risk of persecution and serious harm in Sri Lanka as identified by the UK Upper Chamber.

   b.The applicant did not make any claims with respect to those identified and yet this information is used to contribute to adverse finding.

1. This ground relates to the Tribunal’s referring to the categories of persons at risk in Sri Lanka that were identified by the United Kingdom Upper Chamber.[25] The applicant claims those categories were irrelevant because the applicant did not claim he fell within any of those categories of person.

   [25] The determination the Tribunal referred to is GJ and others (post-civil war: returnees) Sri Lanka CG  [2013] UKUT 00319

2. This ground misunderstands the purpose for which the Tribunal referred to the categories identified by the United Kingdom Upper Chamber. The purpose was to determine which persons were at risk of persecution or serious harm on return to Sri Lanka and whether the applicant fell within one of the categories. It was reasonably open to the Tribunal to have regard to country information, such as the determination of the United Kingdom Upper Chamber for these purposes.

3. Ground 2 of the Further Application, therefore, fails.

Written submissions

1. I have considered the applicant’s written submissions. Those submissions largely repeat the grounds stated in the Further Application and quote the passages from the Tribunal’s decision that are referred to in the applicant’s  Further Application.

Submissions made at hearing

1. At the hearing before me the applicant said his father did not return to his village; he had not spoken to his father for four years; the applicant’s mother is living alone; the applicant’s claims are true and if he returns to Sri Lanka the same things will happen to the applicant; if the applicant were returned to Sri Lanka he would seek refuge in another country; and he has been living in Australia for 4 years without committing any crime.

2. As I informed the applicant at the hearing, these are not matters that are relevant to the matters I am required to decide. They are an appeal to the merits of the applicant’s claims for protection. The jurisdiction of this Court when considering an application for judicial review of the Tribunal is to determine whether, on the grounds on which an applicant relies, the Tribunal has made a jurisdictional error.

Conclusions and disposition

1. The applicant has not demonstrated that the Tribunal made a jurisdictional error. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 12 October 2017