AAH15 v Minister for Immigration

[2015] FCCA 2359

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAH15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2359

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether Tribunal conflated issues in its reasoning, failed to afford the applicant procedural fairness and/or erred by failing to consider the applicant’s membership of a particular social group – no jurisdictional error – application dismissed.

Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088
NABE v Minister for Immigration & Multicultural Affairs (No.2) (2004) 144 FCR 1
Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28
Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287

Applicant: AAH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 426 of 2015

Judgment of: Judge Smith

Hearing date: 12 August 2015

Date of Last Submission: 12 August 2015

Delivered at: Sydney

Delivered on: 2 September 2015

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitor for the Respondents: Mr L. Dennis, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 426 of 2015

AAH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a fisherman from Sri Lanka who claims that he left Sri Lanka because his ability to subsist and to provide for his family was being seriously threatened because of his Tamil ethnicity.

2. In order to work as a fisherman in Sri Lanka a person is required to have a fisherman’s ID card and must have the original document in their possession in order to be safe from the Sri Lankan Navy who patrol the waters. The applicant claimed that approximately two or three years ago the Sri Lankan Army began refusing to give Tamil fisherman original ID cards. The Sinhalese fisherman never had that problem. For Tamil fisherman, it meant that they could not go out on the water. This meant that their ability to fish for a living was seriously threatened.

3. In addition to that, the applicant claimed that he would disappear, be killed, seriously physically harmed, detained and mistreated in detention in Sri Lanka and that when the authorities learned that he has sought asylum in Australia, he would be suspected of being a former member of the LTTE and would be shot like his father.

4. After he arrived in Australia the applicant made a claim for a protection visa on the basis of these fears. On 16 September 2013, a delegate of the Minister decided to refuse to grant the applicant that visa and the applicant applied to the Tribunal for review of the delegate’s decision.

5. At the hearing conducted by the Tribunal the applicant raised a new claim, namely that his brother in Sri Lanka had been arrested and taken to Colombo for interrogation and then released. The reason for the arrest was that the boat owned by his brother had been used by the LTTE.

6. The Tribunal made its decision on 2 February 2015, affirming the decision of the delegate.

7. The Tribunal accepted that the applicant’s father was killed by the Sri Lankan Army in 1993, along with 70 other Tamil fishermen who were accused of being involved with the LTTE. However, it found that his father’s death did not support a finding that there was a real chance of the applicant being harmed now or in the reasonably foreseeable future. This was because there was no evidence to suggest that the applicant’s family had been imputed with a pro-LTTE profile because of his father.

8. The Tribunal also accepted that the applicant’s uncle was killed by a truck. However, in light of the applicant’s inability to provide any explanation as to why the applicant might be targeted, and in light of the change in the country situation since the end of civil war in May 2009, the Tribunal found that the uncle’s death did not support any conclusion there was a real chance of the applicant being harmed if he were to return to Sri Lanka.

9. The Tribunal accepted that on one occasion the applicant was prevented from fishing for a few days because his ID card was withheld from him. However, it found that this was resolved when he lodged a complaint about it. The Tribunal did not accept that he been prevented on regular occasions from fishing by the authorities. It noted in this respect, that the applicant’s brother, uncles and brother-in-law were all currently working as fisherman in Sri Lanka and that his elder brother is supporting the family members who the applicant had previously supported.

10. The Tribunal found that the applicant had fabricated the claim about his brother’s arrest due to the lateness of it, its inconsistency with his previous evidence that his family had not suffered any harm since the applicant had left Sri Lanka, as well as the lack of detail about the claimed detention.

11. The Tribunal then referred to the submission by the applicant’s agents concerning the increased militarisation of the Northern Province of Sri Lanka, where the applicant comes from. However, in light of country information available to it, the Tribunal was not satisfied that there was a real chance of the applicant being harmed as a result of that militarisation.

12. The Tribunal was not satisfied that the applicant had been denied a right to earn an income as a fisherman or Tamil in Sri Lanka or that he had been physically harmed as such. It accepted, as noted above, that he had been involved in one incident but did not accept that that constituted serious harm.

13. The Tribunal then turned to consider whether the applicant’s Tamil ethnicity and the fact that he is from a particular town in the Northern Province was sufficient to establish a real chance that he would be harmed for that reason. In doing so, it analysed the information relied upon by the applicant, and found that most of that related to Tamils who have actual or suspected connections with the LTTE. It found that the applicant did not claim to have any such association and that there was no evidence which suggested that the Sri Lankan authorities suspected that he has or had any such connection. For those reasons, it did not accept that being a Tamil, young, male and/or from a town in the Northern Province  would mean that he would be imputed with a pro-LTTE profile. It also did not accept, for reasons it gave later, that he would be imputed with such a profile for being a failed asylum seeker returning from Australia.

14. The Tribunal did not accept that the independent evidence established that Tamils were at risk of serious harm on the basis of their ethnicity alone or because they were from a particular part of Sri Lanka which was LTTE-occupied. While it accepted that there continued to be persecution of persons with certain profiles, such as persons who had LTTE connections, it did not accept that the applicant had any such profile, that there was a real chance that he would suffer serious harm for reason of his ethnicity or links with the northern province of Sri Lanka.

15. Next, the Tribunal considered the applicant’s claims relating to being a failed asylum seeker or returnee. It found, as noted, that the applicant would not be imputed with a pro-LTTE profile by reason of his failed asylum claims and therefore there was no real chance that he would be subject to harm in his home area for that reason. It also considered whether the possible treatment of the applicant returning involuntarily, who had left illegally, might constitute persecution. In this respect it accepted that the applicant would be detained for questioning upon his return and that security and character checks would be undertaken. It found that he would be remanded and charged with an offence under the Immigrants and Emigrants Act because he had departed Sri Lanka illegally. However, given that he was not an organiser or people smuggler and there were no criminal warrants outstanding for him, any period of detention in this respect would be short and he would be released on bail. It was not satisfied that there was a real chance that he would be harmed during this process and that if he were convicted, he would be fined, but the chance of him receiving a custodial sentence was remote.

16. The Tribunal found that the fact that the applicant would be remanded for a short period time did not amount to persecution within the meaning of the Convention[1] as the processing of returnees and any penalties to which the applicant may be subjected, would be applied on a non-discriminatory basis under a law of general application.

    [1] Referring to the Convention Relating to the Status of Refugees done at Geneva in 1951 as amended by the Protocol Relating to the Status of Refugees done at New York in 1967

17. The Tribunal also found that he would not be subjected to any harsh treatment or penalties while on remand for any Convention reason and that any difficulties he may face because of prison conditions constituted neither serious harm nor significant harm within the meaning of the Act.

18. The Tribunal concluded that, when the applicant’s circumstances and evidence were considered both cumulatively and individually, he did not face a real chance of serious harm upon return to Sri Lanka. The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm. For those reasons the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and affirmed the decision under review.

Consideration

1. There are four grounds in the amended application. The applicant does not press ground 2.

Ground 1

1. The first ground concerns the Tribunal’s finding in connection with the death of the applicant’s father and uncle. The applicant argues that the Tribunal erred by conflating the issue of LTTE support with the change of situation in Sri Lanka after the end of the civil war in 2009.

2. The relevant finding of the Tribunal was:

   [14]… The Tribunal accepts that his father was killed by the Sri Lankan army in 1993, along with 70 other Tamil fishermen because they were accused of being involved with the LTTE. However, the applicant stated at the hearing that neither he nor anyone in his family had been involved with the LTTE and there is no evidence to suggest that the applicant’s family have been imputed with a pro-LTTE profile because of his father (for example his brother continues to live there without difficulty). The Tribunal considers that the situation for Tamils in Sri Lanka is significantly different now to what it was in 1993 and is not satisfied that his father’s death supports a finding that there is a real chance of the applicant being harmed if he was to return to Sri Lanka now or in the reasonable foreseeable future. Similarly, as supported by the newspaper article provided after the hearing, the Tribunal accepts that the applicant’s uncle was killed by a truck (sometime between 2000 and 2008) but in light of the applicant’s inability to provide any explanation for why his uncle was targeted and in light of the change in the country situation since the end of the civil war in May 2009, the Tribunal is not satisfied that his uncle’s death supports a finding that there is a real chance of the applicant being harmed if he was to return to Sri Lanka now or in the reasonable foreseeable future.

3. This passage makes it clear that, in respect of the father’s death, there were three reasons for which the Tribunal found that there were no ongoing consequences for the applicant. First, the applicant’s family was never in fact involved in the LTTE; secondly, none of the applicant’s family had been imputed with a pro-LTTE profile because of his father; and thirdly, there has been a significant change in circumstances since the end of the civil war. The applicant only addresses the third of these bases. However, contrary to his submission, the change of circumstances since the civil war is relevant to the question of the impact of the father’s death upon the applicant’s future prospects of harm. The applicant was a fisherman in Sri Lanka like his father had been. The fact that circumstances concerning Tamils in the North of Sri Lanka were significantly better than they had been in 1993 when his father was killed, supports the conclusion that it was much less likely now that the applicant might, as a fisherman, be suspected of being involved with the LTTE. That conclusion is fortified by the other two bases for the Tribunal’s finding.

4. The same reasoning applies to the death of the uncle.

5. For those reasons, the Tribunal’s findings in connection with the applicant’s father involved no jurisdictional error and the first ground is rejected.

Ground 1A

1. Ground 1A focuses on the rejection by the Tribunal of the claim made by the applicant, that his brother was arrested and interrogated by the Sri Lankan police (see [17] of the Tribunal’s reasons). In essence, the applicant’s argument was that there were a number of reasons for which the Tribunal should have accepted, or at least ought not to have rejected, his claims about his brother. In particular, the applicant argued that he was not informed about his brother’s arrest until after the Tribunal hearing and the incident only arose after the applicant had already left Sri Lanka in 2012.

2. It may well be, as the applicant argues, that another person might have accepted the applicant’s claim or, indeed, might not have rejected it for the reason that the Tribunal rejected it. However, that is only a matter that goes to the merit rather than the legality of the Tribunal’s finding. For that reason, it does not amount to jurisdictional error.

3. In any event, a number of the premises for the applicant’s argument cannot be accepted. First, when the claim was raised at the Tribunal hearing the applicant said that “he had not referred to this detention earlier because he was afraid that if news got out about it that his brother would have difficulties”. That is inconsistent with the fact that the applicant now relies upon, namely, that he did not raise the claim of the detention, because he did not know about it.

4. Secondly, one of the reasons for which the Tribunal rejected the claim was that it was inconsistent with the applicant’s “initial evidence that his brother and family had not had any difficulties since the applicant left Sri Lanka.” The reference here to “initial evidence” was not to the written claims made in support of the visa application but rather the evidence given orally to the Tribunal at the hearing. The Tribunal noted, at [14] of its reasons, that “the applicant stated at the hearing that neither he nor anyone in his family had been involved with the LTTE” and that his brother continues to live in Sri Lanka without difficulty. That evidence provides a rational basis for the Tribunal’s rejection of the later claim that his brother had in fact been calling for interrogation by the authorities in connection with suspected involvement with the LTTE.

5. The applicant also argues in this ground that the Tribunal denied him procedural fairness by failing to provide him with an opportunity to address the Tribunal’s concerns about his evidence. It is not necessarily the case, however, that the requirements of procedural fairness entail an obligation of the Tribunal to indicate to an applicant its thought processes in connection with any of the evidence given before it. In any event, even if the Tribunal were required to do so, it is clear that it did: it noted, at [17] of its reasons, that it was “having difficulty accepting his evidence”. That note was made in connection with the applicant’s claim concerning his brother.

6. For those reasons this ground is rejected

Ground 3

1. Ground 3 is that the Tribunal erred by failing to consider the applicant’s membership of a particular social group, namely young Tamil men from the North of Sri Lanka, who left illegally. While the applicant accepts that the Tribunal considered the claim based upon the applicant’s status as a returnee, and indeed as a failed asylum seeker who left illegally, he argues that his claims went further and that it was at least implicit in the material before the Tribunal that he might face persecution for reason of the particular social group as just described.

2. There are a number of reasons for which this ground must be rejected. First, the claim was not made by the applicant before the Tribunal. The particulars of the ground refer to pages 164 to 166 of the Court Book (Exhibit 1) being pages 7 to 9 of submissions dated 10 December 2014 from the applicant’s agents. While there is a claim made in those pages that the applicant may be persecuted as a failed asylum seeker, there is nothing in them that about the further qualification of young Tamil men from the North of Sri Lanka. At the hearing, Mr Kumar, who appeared for the applicant, relied on Court Book page 160 at [12](c) (page 3 of the December submissions). However, the particular social group referred to there is only “failed asylum seekers”.

3. Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. In that case, the Tribunal failed to address a claim that was expressly made by the applicant on a number of occasions in written submissions. That said, as noted by the Full Court of the Federal Court in NABE v Minister for Immigration & Multicultural& Indigenous Affairs (No.2) (2004) 144 FCR 1, at 18 [58] the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts, raise a case not articulated: Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). However, this did not require the Tribunal to excavate a claim that is otherwise not apparent on the face of the material presented or the submissions made by an applicant.

4. Secondly, the Tribunal not only rejected the applicant’s claim that he would face harm as a returnee or failed asylum seeker, but also found that he did not face a real chance of persecution for reason of being a Tamil, young, a male and/or from the North of Sri Lanka. In that way, since the Tribunal expressly considered all of his claims individually and on a cumulative basis, any claim based upon a purported group with those characteristics was dealt with by the Tribunal’s findings.

5. For those reasons the third ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  2 September 2015