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[2013] FCA 767
Federal Court of Australia
2013-08-06
Jagot J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court (now the Federal Circuit Court of Australia) in SZRSU v Minister for Immigration and Citizenship & Anor [2013] FMCA 202 dismissing an application for judicial review of the Refugee Review Tribunal's (RRT) decision not to grant the applicant a protection (Class XA) visa.
Background 2 The reasons of the Federal Magistrates Court set out the factual and procedural history of the case at [4] - [11]. The applicant is a citizen of Sri Lanka who arrived in Australia on 21 May 2011 and applied on 22 June 2011 for a protection visa. A delegate of the Minister for Immigration, Multicultural Affairs and Citizenship (the Minister) refused the application by letter dated 14 September 2011. The RRT affirmed the Minister's decision on 1 August 2012, finding that the applicant's claims on a number of points, including his place of birth, prior travels, ethnicity, and abduction, were untruthful. The RRT also found, on the basis of independent country information, that the applicant would not be exposed to serious harm in Sri Lanka as a failed asylum seeker, or for leaving Sri Lanka using a fraudulent passport. He therefore did not meet the criteria for protection. 3 In the Federal Magistrates Court, the applicant's three stated grounds of review were: 1. The RRT has committed jurisdictional error. 2. The RRT has committed error of law. 3. The RRT has [not] provided natural justice as required by the procedural fairness under the Migration Act. The particulars of these grounds will be submitted after this court has given me a pro-bono lawyer. 4 After filing the application for review the applicant received advice from the NSW RRT Legal Advice Scheme, but he was unrepresented at the hearing before the Federal Magistrate, and elected not to file an amended application giving particulars of the grounds of review. The applicant did file short written submissions before the hearing, which the Federal Magistrate treated as the substance of his appeal. 5 The applicant submitted to the Federal Magistrates Court that the RRT had failed to contact the Birth Registry and his high school in Sri Lanka in order to verify aspects of his claims, and failed to consider other information, specifically: a statutory declaration by his brother that the applicant was born in Chavakchcheri; the applicant's claim that he was endangered by his friendship with a man who was arrested and released from detention by an unknown armed group working with the Sri Lankan Government; his claim of torture by the Sri Lankan Security Forces despite a Detention Attestation by the Red Cross and available country information; that failed asylum seekers are treated badly in Sri Lanka, and that the applicant had left the country unlawfully. 6 The Federal Magistrates Court accepted the submissions of the Minister in response. The Court held that, first, as a decision maker is under no general duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALR 429), the RRT was entitled to conclude that there was no utility in verifying the applicant's claims about his birth certificate and school. Rather, the RRT put the applicant on notice by a letter dated 27 June 2012 that it had concerns about the veracity of that evidence, and allowed him to obtain further evidence if he so chose. Second, the RRT did consider the applicant's brother's statutory declaration, at [63] and [95] of its decision, but found that the applicant was in fact born in Kandy. Third, the RRT also considered the claim regarding the applicant's friend, at [106], but was not satisfied that it was true. Fourth, as the RRT was under no duty to seek verification of the Red Cross Detention Attestation it was entitled to conclude, as it did, that the inconsistency of the applicant's other evidence regarding the date of his detention outweighed the evidence from the Red Cross. Fifth, the RRT considered the country information before it regarding the torture of Tamils by Sri Lankan Security Forces, at [108]. The applicant's dispute with regard to this ground appeared to be one of weighing of evidence, which is a matter for the Tribunal: Minister for Immigration and Citizenship v SZNPG and Anor [2010] FCAFC 51; (2010) 115 ALD 303 at [20], [23]-[26] and [28]. Sixth, the RRT considered the applicant's claim that he may suffer harm because he left Sri Lanka illegally, both against the Refugee Convention criteria and the complementary protection criteria at [109] and [116]. Finally, the Federal Magistrate noted that the RRT's most significant finding was one pertaining to the general credit of the applicant's claims, namely that they were "implausible", and that the RRT was entitled to so find without giving detailed reasons (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2002) 168 ALR 407).
Consideration 7 The applicant's grounds of appeal essentially restated those he put in the Federal Magistrates Court, and were not particularised. They were: 1. The Federal Magistrate Court has not made a finding that the RRT committed jurisdictional error. 2. The Federal Magistrate Court has not made a finding that the RRT has committed jurisdictional error of law. 3. The Federal Magistrate Court has not made a finding that the RRT has not provided natural justice to me as required by the procedural fairness under the Migration Act. 8 The applicant's submissions also appeared to restate what was put to the Federal Magistrates Court. As the Minister submitted, however: …the Court below correctly applied the authority in Minister for Immigration & Citizenship v SZIAI & Anor (2009) 259 ALR 429 in finding that the Tribunal was not obliged to conduct any enquiries of the Birth Registry in Sri Lanka, the appellant's high school in Jaffna or the Red Cross. …the Court below correctly found that any duty on the Tribunal to put the appellant on notice of its concerns regarding the authenticity of the appellant's birth certificate was discharged. …the Court below correctly found that the Tribunal had considered and taken into account the statutory declaration of the appellant's brother, his claims regarding Mr Prabhakaran and his claim that he would suffer harm because he had left Sri Lanka illegally. …the Court below correctly found that the weight to be given to country information was a matter for the Tribunal. 9 As the Minister also noted in response to the applicant's written submissions, the RRT did not fail to consider the issue of torture by Sri Lankan security forces. The RRT considered the applicant's claims in this regard at [105] of its decision but did not accept that the claims, or the oral and documentary evidence in support, were credible. 10 As to the applicant's submission about the consequences of his illegal departure from Sri Lanka, the RRT also considered this issue at [116] of its reasons for decision. There is no basis for the applicant's submission that the RRT applied the wrong test in considering this issue. 11 I accept these submissions of the Minister. 12 Otherwise, in respect of country information that the applicant said supported his claim, as the Federal Magistrates Court said at [35], the weight to be given to such information was a matter for the RRT. 13 I can see no error in the reasons for judgment of the Federal Magistrates Court. Accordingly, the appeal must be dismissed. The Minister's claim for a lump sum order should be granted. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.
SZRSU
Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FMCA 202
(2000) 168 ALR 407
(2002) 168 ALR 407
(2009) 259 ALR 429