SZSHO v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The appellant appeals from an order of the Federal Circuit Court of Australia dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal rejecting the appellant's claims for a protection visa. The order was made on 18 September 2013 consequential on reasons for judgment published on the same date (SZSHO v Minister for Immigration & Anor [2013] FCCA 1457). As the primary judge explained at [1]: In this case a young Tamil male from the north of Sri Lanka made claims to be a person to whom Australia owed protection obligations for some specific incidents that he claimed happened to him and members of his family and for some general grounds based upon his ethnicity, place of birth, and residence. When his case came to be determined by the Refugee Review Tribunal, it concluded that it could not accept as credible the specific claims and proceeded to give consideration to those more general ones, concluding that it could not be satisfied that these indicated that the applicant had a well-founded fear of persecution for a Convention reason. It came to a similar conclusion in the case of complementary protection. 2 In the notice of appeal the appeal the appellant contends that the primary judge erred on two grounds, the first relating to the Refugee Review Tribunal's alleged misdirection or failure to consider a claim of harm by reason of the appellant's social group and the second relating to the Tribunal's alleged failure to consider properly the issue of complementary protection. 3 The first of these alleged errors by the Tribunal was raised before the primary judge, at which time the appellant was represented by counsel. It was put to the primary judge by the appellant's counsel that in a written submission to the Tribunal the appellant's advisors had claimed that the appellant would be at risk of persecution if returned to Sri Lanka by reason of his membership of a particular social group. The submission relied upon (which was to be found at CB 194) said: In considering the Applicant's risk of persecution if returned to Sri Lanka it is also important to take into account that authorities in Sri Lanka, the paramilitary groups and individual members of the Police Force, Army and CID are engaged in the persecution and human rights abuses of individuals, such as the Applicant, not on the basis of the Applicant's own political views, activities or personal profile but on the authorities (and the paramilitary groups) own views/policies of 'screening' individuals and their own views regarding an individual's ethnicity, place of birth/residence, age, suspected links with the LTTE and imputed political opinion. Thus authorities (and paramilitary groups) can accuse or suspect an individual of associating with, being a member of, associating with or supporting the LTTE despite the individual's denial." 4 The decision of Robertson J in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 provides a convenient summary of the applicable principles. The primary judge referred to this decision at [5]. Robertson J said: 44 In my opinion, the current claim was not apparent on the face of the material before the Tribunal or squarely or sufficiently raised by the material. 45 These expressions are derived from Htun v Minister for Immigration (2001) 194 ALR 244 at [42]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [22]-[24], [27] and [NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)] (2004) 144 FCR 1 at [58]-[61] and M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [90]. 46 In Htun Allsop J, with whom Spender J agreed, said that there had been a failure to deal with one part of the claim for asylum on the basis of the applicant's imputed political opinion. It was true, Allsop J said, that when called on at the hearing to articulate his fears the applicant did not expressly identify his friendships as a Karen with people in organisations such as the KNLA, as distinct from his activities in Australia. However, Allsop J said, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, this basis of the claim had not been abandoned. Conceptually, and in a commonsense way, Allsop J said, that claim was quite distinct from his claim based on his participation in the Karen community and the political groups. 47 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 does not, in my opinion, assist because in that case, as the majority held, the Tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts, being that the Tribunal did not deal with his claim to be a member of the social group consisting of entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals. 48 In M61/2010E at [90] the Court said, with reference to Dranichnikov at [24] and [95] that failing to address one of the claimed bases for the plaintiff's fear of persecution was a denial of procedural fairness. 49 NABE discussed, at [58], the proposition that the Tribunal was not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raised a case not articulated. The Court said that a claim not expressly advanced would attract the review obligation of the Tribunal when it was apparent on the face of the material before the Tribunal. Such claim will not depend for its exposure on constructive or creative activity by the Tribunal. At [59] the Court discounted as a general rule that the Tribunal could disregard a claim which arose clearly from the materials before it. The Court approved, at [60], the following statement by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [18]: The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it. The Court said that this did not mean that the Tribunal was only required to deal with claims expressly articulated by the applicant. It was not obliged to deal with claims which were not articulated and which did not clearly arise from the materials before it. 50 At [62], the Court cited with approval the statement by Gleeson CJ in S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1]: Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process. The Court said at [63] that every case must be considered according to its own circumstances. 51 Applying these principles, the Court in NABE said that although the claim might have been seeing as arising on the material before the Tribunal it did not represent, in any way, "a substantial clearly articulated argument relying upon established facts" in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal failed to consider a claim which is not expressly advanced is not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. 5 The primary judge assessed the extract from the submission upon which the appellant's counsel relied in context. At [6] his Honour noted that the submission commenced (at CB 193) with a bold heading as follows: APPLICANT'S CLAIMS In summary the Applicant fears persecution for reasons of: • his ethnicity (Tamil) • his political opinion (opposition to the Sri Lankan government and the treatment of Tamils by the Sri Lankan government) and imputed political opinion • his membership of a particular social group(s): 'young Tamil men originating from the north or east of Sri Lanka', 'people suspected or accused of being members of, associating with or supporting the LTTE', 'Tamil failed asylum seekers'." 6 Having regard to the context of the submission as a whole (further extracts from which were quoted by the primary judge at [7]), the primary judge concluded in these terms at [9]: 9. In my view,…what is found at CB194 is merely a fleshing out of the particular claims made at CB193 paragraph 1. Those groups identified at CB193 are the groups the Tribunal was required to look at. The best I could say about the extract at CB194 is that it is a persuasive argument that the applicant's well-founded fear of persecution might rely more on imputed opinion than on actual political opinion. 7 The primary judge then noted at [10] that the Tribunal considered the social groups referred to at CB 193. The appellant's counsel submitted that this was insufficient because the extract at CB 194 raised a claim of an imputed political opinion based not only upon the appellant's ethnicity (Tamil) but also upon "place of birth/residence, age, suspected links with the LTTE". The primary judge, at [11] said: [R]eading the Tribunal's reasons properly and without an eye attuned to the perception of error, it is the view of the court that those matters have been considered. The essential reason for the imputation of the political opinion in respect of people with what is claimed to be the applicant's characteristics is that they are suspected of being members or associating with or supporting the LTTE. 8 The Tribunal had considered this issue, however. At [12] the primary judge quoted from [142] of the Tribunal's reasons where it said: In addition I have considered whether the applicant faces persecution for his membership of the particular social group 'people suspected of being members of, associating with or supporting the LTTE',… Given the applicant's overall lack of credibility I have found that he was not suspected or accused of being a supporter of member of the LTTE. On the basis of the evidence before me in this case, I am not satisfied that there is a real chance that the applicant will be persecuted now or in the reasonably foreseeable future for reason of his membership of the particular social group ''people suspected or accused of being members of, associating with or supporting the LTTE', and that his fear of persecution in Sri Lanka is well founded. 9 The primary judge concluded at [13] that it did not matter that the Tribunal did not refer to "place of birth/residence, age" in this context because those elements were relevant only because they "were themselves constituents of the imputed political opinion arising out of membership or sympathy with the LTTE". 10 I agree. Moreover, the Tribunal expressly dealt with the all elements of the appellant's claims at [127] to [129], [139], [140] and [142] including his "place of birth/residence, age", his ethnicity and alleged suspected links with the LTTE, as well as political opinions that it was alleged would be imputed to him as a result. The argument put to the primary judge, accordingly, was unsustainable. 11 The argument was not repeated by the appellant in this appeal. The appellant was unrepresented. Insofar as he addressed the second ground of appeal, relating to complementary protection, the appellant said that the Tribunal failed to consider the current circumstances relating to his family and the claims that his uncle/cousin had been abducted and killed. The Tribunal referred to the claim about the appellant's extended family at [75] of its reasons. Otherwise, the Tribunal noted that nothing specific to the appellant had been put by him about complementary protection (at [109]). No error by the Tribunal in this regard is apparent. 12 The appellant also submitted that the fact that he had made a mistake about a date should not have caused the Tribunal to reject his claims. This relates to the issue of the time the appellant had spent in Qatar. In short, documentary records showed that the appellant had been in Qatar at the time he said he was in Sri Lanka in hiding due to his fear of persecution. The Tribunal put the inconsistency to the appellant who explained he was confused, tense, alone and did not speak English when providing the information. Whether this is so or not is beside the point. The Tribunal was entitled to reach the conclusions it did about the appellant's credibility having regard to all of the information including the inconsistency about dates. The appellant's submission raises no issue of law. 13 The appellant also complained that the further submission which founded the only ground of appeal pressed before the primary judge was filed by his agent without reference to him and he did not have an opportunity to review all of the material in it. There was no evidence to support this complaint and no notice given that it would be raised. Given that it is unsupported by any evidence, nothing can be done with the complaint. It should not be overlooked that, when the appellant was legally represented, the appellant's counsel chose to rely upon the very same submission to argue that the Tribunal had erred. The appellant said he did not know that this was the issue raised before the Federal Circuit Court. There is no evidence to support this contention and the relevant point in any event is that the submission was relied upon by counsel before the primary judge on the appellant's behalf and the appellant cannot now be heard to complain that this submission was filed without his knowledge. 14 No other argument was put in support of the appeal. It follows that the appeal must be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.