SZTDY v Minister for Immigration and Border Protection

SZTDY v Minister for Immigration and Border Protection - [2015] FCA 303 - FCA 2015 case summary — Zoe

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INTRODUCTION 1 This is an application for leave to appeal from the decision by the Federal Circuit Court dismissing, on an application to show cause, under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), the application for judicial review of a decision by the Refugee Review Tribunal (the Tribunal). In its decision made on 27 June 2013, the Tribunal affirmed the decision of the first respondent's delegate (the delegate) not to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (the Act), based on a failure to satisfy the criterion set out in s 36(2)(a) of the Act. 2 The applicant applied to this Court on 31 December 2013 for an extension of time within which to apply for leave to appeal. However, the parties were agreed that no extension of time was required because, under r 1.61(5) of the Federal Court Rules 2011 (Cth) (FCR), the days between 24 December and 14 January the following year are not counted in calculating the period within which an application for leave to appeal must be made. 3 The application for leave to appeal was first listed to be heard on 19 May 2014, on which occasion the applicant appeared unrepresented, as in the Court below. The hearing was adjourned in order to enable the applicant to be referred for pro bono legal assistance under FCR r 4.12 to obtain advice on two grounds. No objection was raised by the Minister to the draft amended notice of appeal which incorporated those two grounds and leave is granted to amend the draft notice of appeal in those terms. 4 As amended, the grounds of appeal read as follows: 1. That there is a jurisdictional error in the Federal Circuit Court decision. 2. The reasons provided by the Second Respondent to the First Respondent in support of the Second Respondent's recommendation that I was not the person to whom Australia had protection obligations were neither logical or rational. 3. …. 4. The Federal Circuit Court erred in failing to find that the second respondent fell into jurisdictional error in failing to consider the claim made by the applicant that he feared persecution as a member of a particular social group, being young Tamil males. 5. The Federal Circuit Court erred in failing to find that the second respondent fell into jurisdictional error by applying the wrong test, being whether the applicant might suffer serious harm if returned as opposed to whether he satisfied the criteria of section 36(2)(a) of the Migration Act 1958. (Ground 3 simply reserved the applicant's right to provide further grounds of appeal once legal representation had been obtained.) 5 The Minister opposes the grant of leave to appeal on the ground that there is no merit in the appeal or, if leave is granted, contends that the appeal should be dismissed. 6 The application for leave to appeal was heard on 1 September 2014, together with any further submissions that the parties might wish to put on the substantive appeal in the event that leave to appeal is granted. Ms Burnett appeared pro bono for the applicant and made careful and considered submissions. The Court is grateful for that assistance. Nonetheless, while I would grant leave to appeal in respect of grounds 4 and 5, I consider that the appeal should be dismissed for the reasons set out below.

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2.1 The applicant's claims 7 The applicant is a citizen of Sri Lanka of Tamil ethnicity and applied to the Department of Immigration and Citizenship (the Department) for a visa on 27 August 2012. 8 Importantly for present purposes, the applicant set out various claims in a signed and dated document headed "statement of claims" (the statement of claims). It was not in issue that this was the document referred to in answer to various questions posed in part C of the applicant's application for a protection visa (Form 866C) concerning his reasons for claiming protection, namely, in answer to the questions as to: why he left his country of origin; whether he had experienced harm in that country; what he feared may happen to him if he goes back; who he thinks may harm or mistreat him if he goes back; why he considers this will happen to him if he goes back; and whether the authorities of that country can and will protect him if he goes back (questions 43-48 respectively). Furthermore in answer to question 49 of the form ("Do you have any documentary evidence to support your claim for protection (including but not limited to membership cards, court documents, photographs, press articles)?"), the applicant again answered by referring to his statement. 9 In the statement of claims, the applicant claimed a fear of persecution by reason of his religion, race (Tamil), being a Tamil returnee, and actual or imputed association with Liberation Tigers of Tamil Eelam (the LTTE). He also stated under the heading "Why I think the authorities of that country cannot or will not protect me if I were to go back to that country", that: … [t]here is no protection for young Tamil males. Our movements are restricted and confined to our area. It is very difficult for us. A lot of young Tamil males aged 18-35 have left the country because they are being targeted and this has also left us without men in our village. The authorities are concerned that men in this age bracket will re-group to go against the government. [the alleged young Tamil males claim] 10 It is this alleged claim which is the subject of ground 4 of the draft amended notice of appeal. The applicant contends that this is properly characterised as a claim to fear persecution as a member of a social group of young Tamil males which the Tribunal failed to address. 11 However, in the submissions to the delegate from the applicant's adviser dated 9 September 2012, no reference was made to the alleged young Tamil males claim as a distinct and separate claim from those claims which were summarised as follows: [The applicant] is an ethnic Tamil from [town and district] Eastern Province of Sri Lanka. [The applicant] is outside his country of nationality and former habitual residence and is claiming a well founded fear of persecution for reasons of: 1. his ethnicity as a Tamil. 2. his religion as a Hindu. 3. his actual/imputed political opinion including of being an 'actual/perceived support of Tamil independence and/or the LTTE through discriminatory application of the PTA (Prevention of Terrorism Act) or as being against the Sri Lankan government 4. his membership of the following social group: • Tamil man from [district] fears persecution from Muslims. • Tamil man from the militarised East fears persecution upon his return to Sri Lanka as a consequence of his application for asylum in Australia; or • Tamil man from the militarised East, an area with a history of an LTTE presence and/or LTTE recruitment. (emphasis in the original) 12 The delegate refused to grant the visa on 1 March 2013. 13 The submission by the applicant's migration agent to the Tribunal dated 15 April 2013 again did not refer to the alleged young Tamil males claim, and summarised the applicant's claims in the following terms: The Applicant claims a well-founded fear of persecution because of his race - Tamil, political opinion (imputed) - opposed to the Sri Lankan government because he is a Tamil man from the east, and his membership of a particular social group/s - constituted by returned Tamil failed asylum seekers, Tamils involved in land disputes. He is outside the country of his nationality (Sri Lanka) and is unable and unwilling to avail himself of the protection of that country. Moreover the Applicant claims there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka there is a real risk that the Applicant will suffer significant harm because he has a profile as a failed returned asylum seeker, he left Sri Lanka illegally and he is a Tamil man from [a particular location]. 14 In its reasons, the Tribunal set out the applicant's claims as advanced in his entry interview, his protection visa application and his protection visa interview in September 2012. Reference was made in this description to the alleged young Tamil males claim together with the following claims which may be summarised as follows: (a) his family had relocated from their home in one district to another because of problems between Tamils and Muslims but had been forced to return in 2005 because they could not access food rations or other services; (b) in March 2011, six armed and masked Muslims had threatened to take his family's land which had been given to them when they relocated, threatened his mother with a knife, and left him tied up; (c) he had been beaten unconscious by Muslims in August 2011; (d) the police would not protect them as they are Tamil; (e) in April 2012, the Criminal Investigation Department (CID) threatened to burn down his father's house if he did not leave; (f) after the last incident, his father decided that the applicant should leave Sri Lanka as he was fearful for the applicant's safety including because he was aware of kidnappings still occurring and had seen the bodies of Tamils on the road; (g) there are frequent round-ups of Tamils disrupting their education and they are constantly being questioned about their knowledge of LTTE activities and weapons stockpiles; (h) he feared that he would be harmed or killed as a Tamil returnee as he came to Australia illegally; and (i) he could not escape harm by relocation because, as a Tamil, he would need to register with the authorities and would be questioned about his background; nor does he have close family members or networks in other areas of the country.

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2.3 The Tribunal's decision 17 At the outset of its consideration of the applicant's claims and the evidence, the Tribunal expressed strong doubts about the credibility of key elements of the applicant's claims given largely unexplained inconsistencies in his evidence and materials, inconsistencies with country information, and the existence of new claims made by him at the hearing and in additional evidence put before the Tribunal. The Tribunal concluded that it was not satisfied that the applicant's account of his and his family's experiences at the hands of Muslim gangs or Muslim members of the CID was credible and was not satisfied that the applicant was a witness of truth. 18 The Tribunal then considered whether the applicant is a person to whom Australia owes protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Convention) and thereby satisfies the criterion set out in s 36(2)(a) of the Act. 19 As to the applicant's claims to fear persecution by reason of his political opinions, the Tribunal was not satisfied that the Sri Lankan authorities have ever had any reason to suspect the applicant of holding a political opinion in favour of the LTTE or against the government, that such a political opinion would be imputed to him on return, or that there is a real risk that he may suffer serious harm for this reason. 20 In relation to the applicant's claim to fear persecution by reason of his Tamil ethnicity, the Tribunal considered on the basis of country information that: Taking this information together, I am not satisfied it indicates that those Sri Lankans who are ethnically Tamil now face serious harm simply because of their ethnicity or that factors such as having geographic origins in the Eastern Province put them at greater risk of such harm. I am not satisfied the information supports a conclusion that the Applicant himself faces a real chance of serious harm on return to Sri Lanka because of his ethnicity. Nor am I satisfied there is anything about his personal circumstances which would operate to exacerbate the fact of his Tamil ethnicity or geographic origins so as to create a real chance that he would suffer serious harm. 21 I will return to this passage which the applicant contended disclosed the jurisdictional error in failing separately and distinctly to consider the applicant's alleged young Tamil males claim. 22 The Tribunal also rejected the applicant's claims to fear persecution because of his membership of any of the particular social groups consisting of "returned Tamil failed asylum seekers" and "Tamils involved in land disputes". Specifically, the Tribunal was not satisfied that members of those groups, which it accepted included the applicant, do in fact suffer serious harm because of their membership of this group and that there was a real chance of the applicant would suffer serious harm for such a reason if returned. 23 Nor was the Tribunal satisfied that the applicant would suffer serious harm because of his Hindu religion if he were returned because that claim was not supported by the country information and the Tribunal was not satisfied as to the credibility of those claims. 24 Finally, the Tribunal considered in the alternative whether the applicant would satisfy the complementary protection criterion in s 36(2)(aa) of the Act because there is a real risk he would be subject to significant harm on return. The Tribunal rejected that alternative claim on the ground that it was not satisfied as to the credibility of the applicant's claims that he would suffer harm of any kind on return to Sri Lanka for the reasons that he has claimed.

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THE APPLICATION FOR LEAVE TO APPEAL 29 Rule 44.12(2) of the FCC Rules provides that, to avoid doubt, a dismissal under rule 44.12(1)(a) is interlocutory. As a consequence, leave to appeal from the decision below must be sought by virtue of s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 30 Relevant factors in deciding whether to grant leave to appeal include: whether in all of the circumstances the decision is attended with sufficient doubt to warrant its reconsideration on appeal; and whether substantial injustice would result if leave were refused, assuming the decision at first instance to be wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court)). 31 Contrary to the Minister's submissions, I consider that there is sufficient doubt to warrant the grant of leave to appeal, particularly on the question raised by ground 4 of the amended notice of appeal. That ground concerns whether the applicant made a separate claim based upon alleged membership of a social group of "young Tamil males" and, if so, whether that was considered by the Tribunal. In this regard, as the applicant's counsel submitted, while the application is deemed to be interlocutory by the FCC Rules, nonetheless, in substantive terms it finally determines the applicant's rights. As such I accept that a substantial injustice would be suffered by the applicant if leave were not granted and the decision below were in error. I also consider that leave to appeal should be granted on the question of whether the Tribunal fell into error by applying the wrong test, as alleged in ground 5. 32 I do not, however, grant leave to appeal on ground 2 of the amended grounds of appeal as no particulars have been given as to why the Tribunal's decision is alleged to be neither logical nor rational, and no submissions were made in support of the ground. I also consider that the Tribunal's findings with respect to the applicant's credibility and rejection of his claims were clearly open to it on the material before it, subject to the questions raised by grounds 4 and 5 of the amended notice of appeal. Nor can I see any error in the decision below in finding that there was no arguable case of jurisdictional error demonstrated by reason of the concerns raised by the applicant over the changes in his representation. That being so, I refuse leave to appeal on ground 1 which pleads jurisdictional error in the decision of the Court below without any elaboration. In any event, I understand that pleading simply to be an umbrella pleading with the errors alleged being specified in the remaining grounds. Nor does ground 3 purport to raise any ground of appeal.

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4.1 General principles: obligation to consider claims (Ground 4, notice of appeal) 33 In conducting its review, the Tribunal must consider whether the applicant is "… a non-citizen in Australia in respect of whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol" (ss 36(2)(a) and 415 of the Act). In turn, in applying this criterion, the Tribunal must consider whether the applicant has a well-founded fear of persecution for one of the reasons set out in Article 1A(2) of the Convention, namely, for reasons of race, religion, nationality, membership of a particular social group or political opinion. If so satisfied, the Tribunal must grant the visa under s 65 of the Act. 34 The principles by which it is determined whether a failure by the Tribunal to deal with an alleged contention that an applicant fears persecution for a Convention reason were not in issue between the parties. 35 These principles were considered in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (WAEE). In that case, the Full Court (French, Sackville and Hely JJ) at [45] identified two elements as key to demonstrating that the Tribunal has failed in the discharge of its duty under s 414 of the Act to conduct a review of the decision, namely: If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material... (emphasis added) 36 Their Honours emphasised that "[t]his is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision." (at [45]). However, as the Full Court then explained, the Tribunal's obligation did not require it to address every contention. Rather, in elaborating upon the kinds of considerations to be considered in determining whether or not the Tribunal has failed to discharge that duty, the Full Court held at [46] that: It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. 37 Bearing these considerations in mind, the Full Court expanded at [47] upon how the drawing of inferences as to whether the Tribunal had failed to consider an issue is approached: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 38 A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a "substantial, clearly articulated argument" that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 (Plaintiff M61/2010E) at [90] (the Court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which "squarely" arises on the material before the Tribunal in the sense that "it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [58] (the Court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (Htun) at [42] (Allsop J with whom Spender J agreed at [1]).

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4.2 Was there a failure by the Tribunal to consider a claim by the applicant giving rise to a failure to exercise jurisdiction? 39 It was never in dispute that the applicant was a young, Tamil male, as the Tribunal accepted. However, put simply, the Minister submitted that the Tribunal did not consider young Tamil males as a particular social group because no claim to fear persecution was ever articulated by the applicant in that way. 40 Counsel for the applicant took the Court to a number of references in the appeal book in support of the proposition that the alleged young Tamil males claim was put on a number of occasions. However, aside from the claim made in his statement of claims quoted at [9] and recitation of that claim in the Tribunal's reasons to which I have referred at [14] above, the Minister rightly submitted that all of those references were to claims which were articulated differently, being either a claim to fear persecution as a returning failed asylum seeker or a Tamil man from the East, being an area with a history of LTTE presence and/or recruitment. Those claims were consistent with the way in which the applicant's representatives represented his claims before the Delegate and the Tribunal (see at [11] and [13] above) and were inconsistent with the alleged young Tamil males being a separate claim. I do not consider that the single reference in the statement of claims to the alleged young Tamil males claim, as against the extensive and detailed submissions subsequently made by the applicant's representatives to the delegate and to the Tribunal as the reasons why he claims to fear persecution, can be said to amount to a claim that is clearly articulated or squarely arises on the material before the Tribunal. In this regard, I note the Full Court recently observed in SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [37] in the context of considering whether a claim is being made (in the context of a claim for complementary protection): We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. 41 Furthermore, insofar as the applicant's youth and gender might have had a bearing on those claims which were pressed, these factors would appear to have been considered by the Tribunal, as the Minister submitted. Thus, in the context of his claim to fear persecution by reason of his Tamil race, the Tribunal expressly considered whether "there is anything about his personal circumstances which would operate to exacerbate the fact of his Tamil ethnicity or geographic origins so as to create a real chance that he would suffer serious harm". The Tribunal found that it was not so satisfied. In view of my conclusion that the alleged young Tamil males claim was not sufficiently raised, I do not accept contrary to the applicant's submissions that this conclusion manifests the failure to consider that alleged claim. 42 In any event, even if a separate claim were regarded as having been made, it was not supported by any probative material provided by the applicant or his advisers, or apparent on the country information. In this regard, I do not regard the inclusion of the claim in the statement of claims attached to the protection visa application which is the subject of a declaration by the applicant as giving the claim any necessary probative weight. I accept the Minister's submission that the statements amount to the making of a claim, as opposed to evidence of the veracity of the claims made: see also the reference to the need for a claim to be supported by "objective evidence" by Allsop J in Htun at [41]. It follows that the second and essential element in demonstrating a failure by the Tribunal to discharge its duty on the application for review identified in WAEE cannot be made out and this ground of appeal must be dismissed.

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4.3 The alleged application of the wrong test so as to raise the threshold to "serious harm" (Ground 5, notice of appeal) 43 Nor do I consider that the appellant can succeed on ground 5 of the amended application. 44 As the applicant contended, where a decision-maker fails to address the statutory criterion and asks itself the wrong question, the decision-maker will fall into jurisdictional error: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 [82]. The applicant contended that the Tribunal fell into jurisdictional error by applying the wrong test to determine the applicant's claims to fear persecution by reason of his Tamil ethnicity in that: The Tribunal raised the threshold to whether the applicant was objectively "at risk of serious harm", whereas the correct test under s 36(2)(a) of the Migration Act is, relevantly, whether the applicant has a well-founded fear of persecution. Although s 91R(1)(b) of the Migration Act refers to persecution involving serious harm, the correct test is not whether or not the applicant would objectively suffer serious harm. It is whether he has a well-founded fear of persecution. The Tribunal did not advert to, or apply, this distinction. 45 In short, the applicant contended that the Tribunal "conflat[ed] the 'well founded fear of persecution' test with the 'significant harm' test in s 36(2)(aa) of the Migration Act. These are two different tests, with the latter being more stringent." 46 However, as has often been said, the Tribunal "is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'": WAEE at [46]. In this case, I do not consider that, properly understood, the Tribunal's reasons disclose that it fell into error. The Tribunal correctly identified its task at the start of its reasons as, relevantly, determining whether the applicant met the criteria for a protection visa in s 36 of the Act, being a person in respect of whom Australia has protection obligations under the Convention. The Tribunal also concluded in accordance with that criteria that: 46. In light of all the information before the Tribunal, considered individually and cumulatively, I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would suffer serious harm amounting to persecution for the Convention reasons of his Tamil race, his Hindu religion, his actual or imputed political opinion or his membership of a particular social group. He does not claim to fear serious harm for any other Convention reason and no other reason is apparent on the face of the information before the Tribunal. 47. I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he returned to Sri Lanka, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee. 47 These passages, in particular, demonstrate in my view that the Tribunal understood its statutory task. It was not substituting some more onerous test of "serious harm" for the statutory criterion but rather applying the requirement in s 91R of the Act that persecution must involve "serious harm to the person" before Article 1A(2) of the Convention applies for the purposes of the Act. In other words, s 91R limits persecution for the purposes of the criterion for a protection visa to persecution involving serious harm to the person. The reference therefore to "serious harm" in the Tribunal's reasons where understood in its statutory context, does not reveal error.

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