FEDERAL COURT OF AUSTRALIA

SZRCN v Minister for Immigration and Citizenship [2012] FCA 1236

THE COURT ORDERS THAT:

1.    The application for leave to amend the notice of appeal be dismissed.

2.    The appeal be dismissed.

3.    The first appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from an order of a Federal Magistrate made on 12 July 2012, dismissing the appellant’s application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (RRT), made on 3 January 2012, and ordering the first and second appellants to pay $5,400 in costs to the first respondent (the Minister).

2    There are three appellants; a husband and wife, and their daughter. They are Sri Lankan citizens who arrived in Australia in February 2011.

3    On 16 March 2011, the wife, who I shall call the appellant, applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. The husband and daughter claimed to be members of the family unit and combined their applications with the wife’s application, a course which is permitted by the Migration Regulations. On 27 May 2011, a delegate of the Minister made a decision to refuse the application for the visa. On 15 June 2011, the appellant applied to the RRT for a review of that decision. On 3 January 2012, the RRT affirmed the decision of the delegate.

4    On 31 January 2012, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the RRT’s decision. On 12 July 2012, that application was dismissed.

5    The appellant now appeals to this Court.

Proceeding in the RRT

6    The appellant claimed to have been persecuted by both the Liberation Tigers of Tamil Eelam (LTTE) and the Eelam People’s Democratic Party (EPDP). She claimed that, having been born in Mullaitivu in the north of Sri Lanka, which was the location of LTTE headquarters, her family had often been displaced because of the fighting between the LTTE and the Sri Lankan Army.

7    The appellant claimed that while at school she had been forced to do work for the LTTE and undertake LTTE training, and that during this time she and her brother were assaulted by soldiers from the Indian Peace Keeping Force (IPKF) and then accused by the LTTE of giving the IPKF information in relation to a land mine that had been planted near their house. As a result, the appellant claimed that she and her family were accused by the IPKF of being LTTE supporters. At the same time, the LTTE had suspected them of being IPKF supporters.

8    The appellant claimed that when she began work in the Rehabilitation Ministry in Mullaitivu as a clerk, she was forced by the LTTE to give them copies of government documents, but that her supervisor had become aware of this and had warned her. She also stated that the LTTE had forced her to teach kindergarten and first year students at an orphanage run by the LTTE. Because of the demands placed on her by the LTTE, the appellant claimed that she left her employment at the Rehabilitation Ministry in March 1995 and went to stay with a relative in Colombo. While in Colombo, the appellant claimed she had been arrested in a cordon and search operation on suspicion of being an LTTE member, and that she was only released after her aunt made representations through influential persons on her behalf.

9    The RRT accepted some aspects of this part of the appellant’s claims. In particular, the RRT accepted that whilst she was at school she was forced to work for the LTTE and she underwent physical training. The RRT also accepted that in 1994 and 1995 the appellant, whilst employed as a clerk in the Rehabilitation Ministry, was forced to give copies of government financial documents to a member of the LTTE. It also accepted that she was forced to provide translations. Lastly, the RRT accepted that she was forced to teach kindergarten and first year students for a few hours at an orphanage run by the LTTE.

10    However, in accepting those claims, the RRT observed that on the information available “that almost everyone who lived in areas under the control of the LTTE had to assist the LTTE in some way, that the Sri Lankan government is well aware of this and that it distinguishes between people who were forced to assist the LTTE and people who were actually involved in military activities”.

11    The appellant said that, soon after these events, she left Sri Lanka for Switzerland where she married her now husband who had, in 1990, also fled Sri Lanka. She claimed that although they both had applied and been refused refugee status in Switzerland, they were issued with work permits and later were granted permanent residency. In April 2009 and July 2010, the appellant visited Sri Lanka and stayed with her sister in Colombo.

12    The appellant claimed that, between August and mid-October 2010, she and her husband had received threatening calls from unknown persons threatening to report them to Swiss authorities as being LTTE collaborators who were collecting money for the group. She said she had not reported the calls to police as she and her husband felt at the time the calls were not serious and were a hoax. However, the appellant claimed that while she was again visiting Sri Lanka in December 2010/January 2011 to see her mother who was ill, she was abducted from her sister’s house by a policeman, a uniformed soldier and two youths in civilian dress. She claimed the men had taken her somewhere in a van, questioned her, and accused her of belonging to a family of LTTE supporters and collaborators. She claimed that one of the youths had assaulted her. She also claimed that the army officer had raped her. She alleged that the men tried to force her to sign a document confessing that she was an LTTE supporter and that she had collected money for the LTTE. The appellant claimed to have been released after her sister and husband paid two million Sri Lankan rupees in ransom.

13    The appellant claimed that, 10 days after her return to Switzerland, three Tamil youths came to her house. She stated that the youths initially said they had come with a message from the Sri Lankan Embassy but, once she let the youths inside, they identified themselves as members of the EPDP and demanded that she and her husband pay 10,000 Swiss francs to their anti-LTTE fund. She said they threatened that if she and her husband failed to pay the money they would inform Swiss police that she and her husband were LTTE cadres working to resurrect the movement. The appellant claimed she and her husband had been afraid to go to the Swiss authorities to report the threat, because the police had recently made arrests of persons believed to be LTTE supporters who had been involved in extortion. They were afraid that the EPDP would make false accusations that would result in Swiss authorities arresting and charging her and her family or deporting them, and that she did not want to bring a police investigation on herself.

14    The appellant claimed that, while in Switzerland, she and her husband had never collected money for the LTTE but that the EPDP had come and forcibly taken money from them. They had not made a report to the police, even though police were asking victims of the LTTE extortion to come forward, and the appellant claimed this was because the extortion demand had come from the EPDP, not the LTTE. She feared they might be arrested on suspicion of having collected money for the LTTE. She said the family had come to Australia on the advice of her brother, a resident of Australia, and that she and her family could not legally return to Switzerland as their permanent residence had expired, because they had been out of the country for more than six months. The appellant said she had not even thought to apply to have the period extended to four years as she felt scared to live in Switzerland. She was sure they could not live there safely any more. She claimed that they would be persecuted in Sri Lanka by both the LTTE and the EPDP.

15    The RRT found that, in relation to the claims made about the appellant’s last visit to Sri Lanka and the problems she and her husband had with the EPDP immediately before they came to Australia, the appellant had memorised her claims set out in her statement. The RRT found that she was unable to expand on her claims or provide cogent explanations for her claims. The RRT did not accept her claims of the events of her last visit to Sri Lanka, finding that if the appellant was telling the truth about having been suspected of involvement in the LTTE or fundraising for them as claimed, she would not have been abducted from her sister’s house because she would have been arrested at the airport. The RRT found that because the appellant was not arrested at the airport it led to doubts on her credibility as to her claims about what happened on her visit to Sri Lanka in December 2010. Further, the RRT found that the lack of evidence, such as bank statements showing the transactions relating to the payment of the ransom (both at the time and later repayments to those persons from whom she claimed her husband had borrowed money), raised further questions as to her credibility and the veracity of her claims.

16    The RRT did not accept the claim that EPDP members came to the appellant’s home after her return from Sri Lanka and demanded 10,000 Swiss francs. The RRT considered that the Sri Lankan authorities are capable of distinguishing between people such as the appellant who were forced to assist the LTTE while living in areas under LTTE control and people actively involved in militant activity.

17    Additionally, the RRT found that should the appellant return to Sri Lanka it was reasonable to expect they would settle in Colombo where her sister lives, as it would be practicable in all the circumstances of the case for the appellant and her family to settle there.

18    For these reasons, the RRT did not accept that there was a real chance the appellant, her husband or her daughter would be persecuted for any Convention reason should they return to Sri Lanka now or in the reasonably foreseeable future.

Proceeding in the Federal Magistrates Court

19    The appellant relied upon the following amended grounds before the Federal Magistrate:

Ground 2

The Tribunal committed jurisdictional error when [it] failed to consider activities of (Presidential Taskforce) PTF (CB184) when considering the finding if there was [a] real chance of persecution.

Particulars

The Applicant submitted that there was concern owing to the activities of PTF (CB184), the Tribunal has not considered, the Tribunal did not consider the activities of PTF in resolving the issue of well-founded fear (only considering prior threats).

Ground 3

The Tribunal stated (CB237, RRT Decision p34 at [154]) “… However, having regard to information available to me, I consider that Sri Lankan authorities are capable of distinguishing between the (sic) people like [the] applicant … and people who were involved in militant activities.” The Tribunal made findings in the absence of evidence and / or logically probative evidence.

Particulars

The evidence relied upon by the Tribunal and discussed at CB237 ([152] – [153]), do (sic) not support the current situation of the finding and / or are logically prohibitive in supporting the conclusion.

Ground 4

The Tribunal stated (CB239, RRT Decision p36 at [166]) “… Having regard to all evidence before me, …. I consider that it would be reasonable …. to settle in Colombo.” The Tribunal committed jurisdictional error made findings by having regard to the entirety of issues and / or failing to address all relevant matters in relation to the applicant family.

Particulars

The evidence relied upon by the Tribunal and discussed at CB237 [156] to support independent internal relocation, do (sic) not support the relocation findings and / or do not address at the relevant matters (such as family network) but relies on the Tribunal’s finding on “well founded fear” rather than addressing the relevant issues supporting the conclusion.

20    Ground one was withdrawn by the appellant at the hearing.

21    Her Honour found ground two was not made out. Her Honour found that even if a claim of fear of persecution from the PTF was made by the appellant, a rejection of the claim was subsumed in the RRT’s findings of greater generality in a rejection of the appellant’s claims of fear of persecution for any imputed involvement with the LTTE.

22    In relation to ground three, her Honour found that the RRT’s findings were open to it on the evidence and the reasons given by it were neither irrational nor illogical. Her Honour accepted the respondent’s submission that this ground impermissibly raised merits review, and the ground was not made out.

23    Her Honour also found ground four was not made out. Her Honour found that the RRT would only be obliged to consider internal relocation if the RRT had accepted the appellant’s fear of harm was well-founded but localised to a particular area. As this was not the case, her Honour found that the issue of internal relocation was subsumed by the RRT’s finding that the appellant was not at risk of a Convention related persecution anywhere in Sri Lanka.

24    The application was dismissed.

The Appeal Proceedings

25    Grounds 1 (as proposed to be amended) and 2 of the notice of appeal are:

Ground 1

Her Honour should have found that the Applicants had made a distinct basis of claim that they could not relocate in Colombo or other parts of Sri Lanka. Her Honour erred when Her Honour stated (SZRCN v MIAC [2012] FCMA (sic) 587 at [62]) that the claim was subsumed and thereby erring in conflating the issues. Her Honour should have found that the Tribunal failed to consider reasonableness and practicality of relocation and thereby committed jurisdictional error and further erred by not providing adequate reasons for the decision. Her Honour should have found that the Tribunal erred by not properly considering relocation by relation to well-founded fear in relation to whole of Sri Lanka in light of claims relating to older claims (LTTE) and newer claims (EPDP) and attempted extortion and the Tribunal erred to the extent it was considering relocation on independent basis.

Particulars

The Appellants had stated that they had fear of persecution as returning Tamil. The Tribunal stated (AB239, RRT Decision p36 at [166]) “… Having regard to all evidence before me, … I consider that it would be reasonable …. to settle in Colombo.” The Tribunal committed jurisdictional error made findings by having regard to the entirety of issues and / or failing to address all relevant matters in relation to the applicant family.

The evidence relied upon by the Tribunal and discussed at AB237 [156] to support independent internal relocation, do (sic) not support the relocation findings and / or do (sic) not address at the relevant matters (such as family network) but relies on the Tribunal’s finding on “well founded fear” rather than addressing the relevant issues supporting the conclusion.

Ground 2

Her Honour should have found that the Tribunal committed jurisdictional error when failed to consider activities of (Presidential Taskforce) PTF (AB184) when considering the finding if there was real chance of persecution. Her Honour erred when Her Honour found that there was “no clearly articulated argument..” (SZRCN v MIAC [2012] FCMA (sic) 587 at [45]) whereas the Appellants had clearly stated the claim and further erred by not providing adequate reasons for the decision.

Particulars

The Appellants had claimed that there was concern owing to the activities of PTF (AB184), the Tribunal did not consider the activities of PTF in resolving the issue of well-founded fear (only considering prior threats). Her Honour erroneously stated these to be subsumed in (SZRCN v MIAC [2012] FCMA (sic) 587 at [46]).

26    At the hearing, the appellant applied to amend the notice of appeal by amending the first ground, to which objection was taken, and including ground 3, which was not previously raised and also to which objection was taken. The amendment to ground 1 was not argued before the Federal Magistrate. It raises similar issues to ground 3. Ground 3 raises a ground not raised before the Federal Magistrate. Ground 3 was in the following form:

Ground 3

The Tribunal committed jurisdictional error when [it] failed to consider claims of harm cumulatively in its assessment of well-founded fear and take all circumstances into account.

Particulars

The Tribunal accepted the Appellants’ claim that First Appellants (sic) claim of persecution and that of her Husband in the past but found that the Appellants (sic) fear was not well founded based on rejection of the rejection of change in circumstances (IPKF leaving Sri Lanka, LTTE defeat at (AB 245 [157]) and the First Appellant’s return to Sri Lanka at (AB 235 [155]). The Tribunal erred in failing to deal with the cumulative effect of the past experience with the present experience in its assessment of well-founded fear.

27    The appellant sought by amending ground 1 and introducing ground 3, to contend for grounds not advanced in the Federal Magistrates Court.

28    The reluctance of appeal courts to consider issues not raised in the court appealed from is well known: Coulton v Holcombe (1986) 162 CLR 1. The issues between the parties should be settled at trial. However, the Full Court has said in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168, where no question of further evidence is involved, that if it is expedient in the interests of justice to permit the ground not agitated below to be raised the Court should do so.

29    The appellant’s amendments simply raise the issue whether the RRT erred in not addressing the appellant’s claims by reference to the whole of the evidence. If they were made out, the amendments are rather unsurprising as propositions. It would be in the interests of justice to permit the amendments if the grounds were an examination likely to be upheld.

Ground 1

30    The appellant complains that the Federal Magistrate erred by not finding that the appellant had made a distinct claim that she could not relocate to Colombo or other parts of Sri Lanka.

31    This ground must be rejected because, contrary to the complaint, the Federal Magistrate did accept that the appellant’s case in the RRT was that it was not practicable to settle in Colombo. The Federal Magistrate observed that the appellant’s migration agent had contended that relocation to Colombo was not reasonable and practicable “because the Applicant had been persecuted in Colombo, the Applicant and her husband did not speak Sinhalese, and that paramilitary Tamil groups were operating in Colombo”.

32    The Federal Magistrate observed that the RRT was not satisfied that the appellant had been persecuted in Colombo. The RRT was not prepared to accept that the appellant’s and her husband’s inability to speak Sinhalese was a reason why it was not practicable for them to settle in Colombo.

33    The Federal Magistrate noted that the RRT was not satisfied that the appellant would be persecuted by paramilitary Tamil groups in Colombo and, indeed, noted that the appellant’s migration agent had referred to such incidents in the north and east of Sri Lanka, not in Colombo.

34    Ground 1 also complains that her Honour erred in finding that the appellant’s claim was “subsumed” in the RRT’s findings. That complaint should be rejected.

35    In [62] of her reasons, her Honour said:

The Tribunal would only be obliged to consider internal relocation if the Tribunal had accepted that the Applicant’s fear of harm is well-founded but that such harm is localised to a particular area (see SZKMS v Minister for Immigration and Citizenship [2008] FCA 499). However, the Tribunal was not satisfied that the Applicant would suffer persecution for a Convention related reason anywhere in Sri Lanka. Moreover, the Tribunal did not accept that any fear that the Applicant may have of the LTTE was well-founded, if she was to return to Sri Lanka. In any event, a rejection of the Applicant’s claim to fear harm in Colombo is subsumed in the Tribunal’s finding that the Applicant was not at risk of Convention related persecution anywhere in Sri Lanka (see WAEE)[.]

36    In my opinion, the statement made by her Honour is unexceptionable.

37    The RRT was not bound to consider the question of relocation unless it was first satisfied that the applicant had a well-founded fear of persecution for a Convention related reason that could not be addressed by the authorities in the particular area from which the applicant came or to which the applicant would be returned.

38    The question of relocation assumes that the applicant has otherwise made out the applicant’s case. In this case, the RRT was not satisfied that the appellant was at risk for a Convention reason anywhere in Sri Lanka. In those circumstances, the question of relocation need not have been addressed. However it was, and the RRT found adversely to the appellant in relation to that issue.

39    The last aspect of ground 1 is similar to the issue raised in ground 3 that the question of relocation should have been considered by reference to the appellant’s complaints of persecution prior to her leaving for Switzerland for the first time.

40    I have already addressed the findings that were made by the RRT in that regard, which do not support a finding of persecution for a Convention reason. Those matters the RRT was prepared to accept were complaints that would have been available to everyone in the area controlled by LTTE.

41    Those findings do not support a more generalised finding that the appellant was at risk for a Convention related reason and could not have relocated to Colombo.

42    Because the proposed amendment to ground 1 was also not argued in its form before the Federal Magistrate and because the amendment cannot be sustained, I refuse leave to amend the notice of appeal to amend ground 1.

Ground 2

43    The appellant complains that the Federal Magistrate erred in failing to find jurisdictional error on the part of the RRT because it failed to consider activities of the Presidential Task Force (PTF) when considering the appellant’s claims. In particular, it is said that her Honour erred in finding there was “no clearly articulated argument”.

44    The appellant claimed that she had made such a claim, which was said to be constituted in a letter written by her solicitor in this proceeding, who is also a migration agent. In a letter dated 16 November 2001 to the RRT, the solicitor wrote, speaking of country information:

The PTF has an implicit policy of giving preference to people not associated with the LTTE. A government official told an international aid worker in the north: ‘If I have a widow of an LTTE cadre and a widow is clearly just Tamil, I’ll pick the latter’. This approach will only increase levels of distrust that already are high.

45    The Federal Magistrate found the statement to which I have referred did not clearly articulate any argument relying upon a fear of persecution by the appellant from the PTF.

46    The Federal Magistrate found that the statement was no more than a summary, by the writer, of country information provided by him. At the hearing, the appellant’s counsel, who was also counsel on this appeal, conceded there was no express or other claim by the appellant of such a nature.

47    In my opinion, the Federal Magistrate was right to conclude that the appellant had not claimed a fear of persecution based upon persecution by the PTF and what was written in the statement was no more than a summary of the country information.

48    A claim of persecution by the PTF was never made in any other written material or, indeed, in the appellant’s interview with the RRT.

49    In those circumstances, the oblique reference to the PTF could not be said to be a claim that required the RRT’s consideration. Ground 2 is dismissed.

Ground 3

50    I have already noted the specific findings made by the RRT in respect of the appellant’s claims prior to leaving for Switzerland for the first time.

51    The findings made by the RRT do not constitute any finding of persecution in the past. The findings simply observe that the complaints made by the appellant were available to all people who lived in the area dominated by the LTTE at the relevant time and do not amount to a finding that the appellant was persecuted.

52    The RRT did address the correct question, which was whether there was a real chance that the appellant would face persecution for the reasons claimed if she were to be returned to Sri Lanka now or in the reasonably foreseeable future.

53    In doing so, the RRT did address all of the evidence that was before it relevant to that question. In paragraph 166 of the RRT’s reasons, the RRT said:

Having regard to all of the evidence before me and my findings of fact above, I consider that it would be reasonable, in the sense of practicable in all the circumstances of the case, for the applicant and her husband and their daughter to settle in Colombo. I have considered the totality of the circumstances of the applicant and her husband and their daughter as Tamils who I accept have been forced to assist the LTTE or to make financial contributions to the LTTE in the past or who are related to people who have been forced to assist the LTTE or to make financial contributions to the LTTE in the past. However, even taking into account the cumulative effect of all these circumstances, I do not accept that there is a real chance that either the applicant or her husband or their daughter will be persecuted for reasons for their race as Tamils, for reasons of a political opinion imputed to them in support of the LTTE or for reasons of any particular social group for the purposes of the Convention such as the applicant’s family if they return to Sri Lanka now or in the reasonably foreseeable future and settle in Colombo.

54    The RRT did not discriminate between the earlier complaints and the later complaints.

55    Ground 3 would, if permitted to be raised, also fail. Therefore, the application for leave to amend the notice of appeal to include ground 3 should also be refused, because the proposed ground cannot be sustained.

56     The appeal is dismissed. The first appellant must pay the Minister’s costs.

Associate:

Dated:    9 November 2012