AAL15 v Minister for Immigration

[2016] FCCA 2990

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2990

Catchwords:
MIGRATION – Applicant seeking judicial review of decision of Administrative Appeals Tribunal – whether Tribunal correctly applied “real chance” test of persecution – whether Tribunal failed to consider adequacy of state protection  – Tribunal’s decision to be read fairly and on a whole – Tribunal not falling into error – application dismissed.

Cases cited:
Chan v Minister for Immigration and Ethic Affairs (1989) 169 CLR 379
MZAJG v Minister for Immigration and Border Protection [2016] FCA 1045

Applicant: AAL15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 348 of 2015

Judgment of: Judge Burchardt

Hearing date: 29 September 2016

Date of Last Submission: 29 September 2016

Delivered at: Melbourne

Delivered on: 24 November 2016

REPRESENTATION

Counsel for the applicant: Mr Guo

Solicitors for the applicant: De Novo Legal

Counsel for the first respondent: Mr Young

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second respondent: Sparke Helmore

ORDERS

1. The application filed on 24 February 2015 be dismissed.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 348 of 2015

AAL15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By a second amended application filed in court on 29 September 2016 the applicant seeks judicial review of a decision of the Refuge Review Tribunal, as it was then known, dated 30 January 2015.  The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a Protection visa.

2. There are two grounds in the second amended application with which it will be necessary to deal in more detail.  It is sufficient for present purposes to say that despite the skill with which counsel for the applicant put his submissions about the matter, the grounds of application are not made out, and the application will be dismissed with costs.

The Materials in the Court Book

1. The applicant’s Irregular Maritime Entry interview is CB8-26.  At CB18 - 19 the applicant explained why he left Sri Lanka.  His claims can be sufficiently paraphrased as relating to problems in the market where he worked with other competitors who were Sinhalese, threats from thugs engaged by a Minister, the thugs knowing that the applicant worked for the UNP, and a failure of the police to act on the complaint that he made as a result of his goods being dispersed by the thugs.

2. He went on to assert that he had had a fight with a person who wanted his spot in the market, but thereafter the Minister’s thugs came in a taxi and beat him.  He deposed to having ceased to attend the Chilaw Market thereafter, and noted a final assault about three months before the entry interview.  The name of the Minister was given as Neomal Perera, the Foreign Affairs Second Minister.  It was his thugs who had threatened the applicant from time to time.  At CB25 the applicant expressed fear in the event of return to Sri Lanka, as he would be harassed and/or tortured, possibly worse, by the Minister’s thugs.

3. The applicant applied for his Protection visa with the assistance of a migration agent on 6 November 2012, and the related documents are CB27 - 96.  The most important is his statutory declaration at CB90 - 95.  The claims made are, in essence, a slightly more detailed version of the events already paraphrased.  Importantly at CB91 the applicant identified the driver of the vehicle that the thugs had first come in as Shiron, who was one of the main election coordinators for the Minister, Mr Perera, and an influential man known to everyone in the area.

4. Shiron slapped the applicant on the face and pulled out a pistol and pushed him to the floor.  Thereafter the applicant’s goods were thrown into the street.  Shiron threatened to kill the applicant if he continued to occupy his market stall.

5. The account detailed that Shiron and his men beat the applicant on the following day, and that thereafter he could no longer work as a street vendor in the Chilaw Market.  Finally, he deposed at CB93 that about two months before he fled Sri Lanka he was inside a parked bus at the Chilaw private bus stand, and that Shiron saw him and verbally and physically assaulted him.  The applicant went on to state at paragraph 34, CB93, that he had been a UNP supporter for many years.  At CB94 he said:

   If I return I believe the Sinhala vendors, and Shiron’s men will seriously harm and kill me as I had refused to vacate the area in the past.  I believe they would seek revenge for my actions and also as I’m a Tamil and a UNP supporter.

6. Thereafter, the matter was referred to a delegate whose decision record is at CB124 - 139.

7. The delegate accepted that the applicant owned a successful shop in Chilaw Market, and had a dispute with other traders in the market.  At CB129 the delegate said:

   I accept that the applicant had a dispute with other traders in the market.  I do not accept that these individuals forcibly acquired his shop due to his Tamil ethnicity.  I do not accept the applicant’s claim that these individuals (including Shiron) had immunity from the Sri Lankan justice system due to an imputed or actual connection with a government Minister.  I find this claim to be highly unlikely, especially considering that the applicant has provided no evidence whatsoever to support this assertion.

8. The delegate comprehensively rejected the applicant’s assertion that the Minister was in any way involved and rejected assertions of inaction on the part of the police (CB129). 

9. Unsurprisingly, given these findings, the delegate rejected the claims made, and also the claim of fear of harm as a failed asylum seeker who had departed Sri Lanka unlawfully. 

10. The applicant applied for review to the Tribunal.  His pre-hearing submissions, declaration and statement run from CB155 - 180.  It is not necessary to paraphrase them further.  I note that at CB179 the applicant asserted: 

    My claims for protection are the same as they were when I first made my statement to the lawyer.  I fear persecution by the Sinhalese authorities who have taken away the ability of Tamils to make a living in our own market in our own town. 

11. The further written submission forwarded by the applicant’s solicitor dated 15 May 2004, at CB190 - 213, while comprehensive, does not in my view add anything of any moment.  A post-hearing submission at CB233 relevantly records: 

    The client has been targeted by Shiron and his associates who wield power and influence given their close alignment and association with PA Minister, Neomal Perera…

    The applicant fears the Sri Lankan government and authorities, as well as thugs associated with the government and ruling politicians…

    The applicant’s claims revolve around a lack of due process of law, a lack of State protection and the Sinhalisation of the country – including his area & particularly his market.  He also fears being returned involuntary as a male Tamil failed asylum seeker.

12. A further statement from the applicant dated 18 December 2014 is at CB235 - 236, in which the applicant relevantly said:   

    I am not safe anywhere in Sri Lanka.  Those who seek to harm me, namely, the Sinhalese store holder Wikrema, Shiron and his thugs, are all Sinhalese.  Shiron and his thugs are closely associated with and do the dirty work for Minister Neomal Perera and the government.  Shiron is friends with Wikrema.  He targeted me with his thugs because I am Tamil and so that Wikrema, who is Sinhalese, can take over my market stall.  They kept targeting me after the incident in March 2011.  They do not want Tamils being successful and standing up against them. 

    Shiron and his thugs are connected to and influence the police and authorities.  They do as they please and the police and authorities will turn a blind eye.  If I return to Sri Lanka, I am sure they will seek to harm me wherever I am.  They will do this because of what happened before I fled Sri Lanka.  Wikrema is angry with me for physically assaulting him and wants revenge.  He will use Shiron and his thugs to make sure that he gets it and that I, as a Tamil, never can come back and see my stall again.  I am not safe anywhere and would not have the protection of the police or authorities.  They did nothing to protect me after I complained about what had happened in March 2011. 

13. The applicant went on to explain why he could not move elsewhere in Sri Lanka to be safe. 

The Decision of the Tribunal

1. The Tribunal set out the application for review at CB241 at paragraph 3 as follows: 

   The applicant is a married forty three year old man of Tamil ethnicity from Chilaw in Puttalam District in the North-West province of Sri Lanka.  He has claimed to fear harm from thugs associated with local political Neomal Perera because of his race, following an altercation which resulted in him being ejected from his market stall and threatened.  He has also claimed to fear harm on the basis of imputed political opinion and as a returned, failed asylum seeker. 

   That seems to me a fair paraphrase of the claim. 

2. The Tribunal set out the relevant law at CB241 - 243 and no criticism is made of those matters.

3. The Tribunal then, at CB243 - 259, assessed the claims and evidence. 

4. At CB244, paragraph 27, the Tribunal found: 

   The applicant has claimed that his stall at the market in Chilaw was on a large site and that his business grew until he was employing two people.  As noted above, his claims about this have been largely consistent and relatively detailed;  at hearing he responded readily to questions about the transfer of site and payment of dues for the store.  The Tribunal accepts on the evidence before it that the applicant’s store was a large one and his business successful. 

5. The Tribunal went on to describe the events of March 2011 when other Sinhalese store holders, Wikrema and Nirmal sought possession of his site and the quarrel that arose from them including the fight in which he hit them back.  The Tribunal traversed the assault sometime later on the same day including Shiron, who assaulted and threatened the applicant with a pistol and threatened to kill him if he continued to occupy his store. 

6. At paragraph 33, CB246, the Tribunal said: 

   The Tribunal accepts on the evidence before it that the applicant argued with Sinhalese stallholders Wickrema and Nirmal and was assaulted and threatened by the market tender holder Shiron who told him not to trade there again and told Wickrema and Nirmal they could take his place.  The Tribunal also accepts on the evidence before it that the applicant’s store was destroyed.  The applicant has suggested both racial and political motivations for the attack on his business.  Any finding as to the motivation of his attackers must necessarily be somewhat speculative but the Tribunal accepts on the evidence before it that the applicant’s Tamil ethnicity may have fuelled resentment of his success and that he may have been attacked and had his spot taken over at the market because Wickrema and Nirmal were envious of the size of his stall and resentful of his success and decided to act against him because he was Tamil.  However, on the evidence before it and having regard to the findings above in relation to the applicant’s political involvement the Tribunal does not accept that the applicant was attacked and his stall destroyed because of his actual or imputed political opinion.

7. The Tribunal went on to consider the question of Shiron and the Minister at CB246 - 247 and found at paragraph 38:

   The Tribunal accepts that support for and connections with a politician may benefit Shiron and give him considerable influence in the local area, but finds it implausible that a Sri Lankan government minister would have either the time or the need to get Shiron and his thugs to “do his dirty work” in order to prevent the applicant from resuming his trade in plastic items and fancy goods at the Chilaw Market.  The Tribunal does not accept on the evidence before it that Shiron or his associates act at the behest of Neomal Perera or that they attacked the applicant on that basis.  On the evidence before the Tribunal does not accept that Neomal Perera targeted the applicant or had any knowledge or interest in the attack on the applicant, the takeover of his market stall or the applicant’s subsequent attempt to make a complaint to the police.

8. The Tribunal went on at CB247 to deal with the police response to the applicant’s complaint and found at paragraph 41:

   The Tribunal considers the applicant’s claims in relation to the police response to his complaint are plausible.  Having regard to the evidence before it the Tribunal accepts that the applicant sought to make a complaint to the police but was told by the OIC at Chilaw that he could not accept a complaint and he should discuss it with Shiron.

9. At paragraph 42 - 43 the Tribunal recorded:

   The applicant has claimed that he didn’t go to the market after that and Shiron and his men came to his house the next night and threatened him, saying he knew the applicant had tried to make a complaint to the police.  He has claimed that Shiron and his men hit him two or three times and said he should not be seen in Chilaw.  The applicant has also claimed that about two months before he left Sri Lanka he was at the bus stand in Chilaw when Shiron saw him and verbally and physically assaulted him.  Asked what happened he said he was boarding the bus and they came and hit him.  Asked whether Shiron and his men came after him on any other occasions the applicant said it was at the market, at his house and at the bus stand.  The applicant has also claimed that before he left Sri Lanka he met one of the Sinhalese men who took over his market stall and he told the applicant that Shiron would deal with him during the forthcoming election. 

   The applicant has been broadly consistent in his claims with respect to these incidents.  The Tribunal accepts on the evidence before it that Shiron and his men came to the applicant’s house the night after the market stall incident and hit and threatened him.  The Tribunal accepts also that they hit him again and verbally abused him when they saw him at the bus stand around a year later.  However, the applicant has stated that he has not been politically active since 1994 and the Tribunal has found above that the applicant was not known or believed to be an active supporter of the UNP and has not current political profile.  In light of this finding, the Tribunal does not consider plausible the claim that one of the Sinhalese men from the market told him Shiron told him he was going to “deal with him” during the forthcoming election;  the Tribunal does not accept this occurred.

10. Having recorded at paragraph 46, CB248, “some reservations” about the reliability of some of the applicant’s claims, the Tribunal concluded:

    The Tribunal finds on the evidence before it that after the market stall incident the applicant continued to work from the Chilaw area with family and/or friends but did not seek to regain his market stall and that his wife helped in her brother-in-law’s shop.  The Tribunal finds on the evidence before it that the applicant continued to make a living during this period.

11. The Tribunal referred to the market stall incident at CB249 - 251.  The Tribunal recorded on a number of occasions a concern that there was, so to speak, no reason now for Shiron and his associates to further assault the applicant, given that they had taken his business and beaten him up.  The matter is perhaps best set out at paragraphs 51 - 53 CB249 as follows:

    The Tribunal noted that he said they beat him every time they saw him but it didn’t sound as though they had gone out of their way to find him, and that this suggested they may not have been really concerned about finding him and harming him.  The applicant repeated that it was every time they saw him.  The Tribunal explained again that if they really had something against him it seemed more likely that they would have gone out of their way to find him and not just taken the opportunity to bash him up if they saw him. 

    The Tribunal asked the applicant what would be in it for them, given they already have the market stall and the business.  The applicant said they want to take revenge and that is what he is afraid of; he tried to file a case against Shiron.  The Tribunal asked the applicant what they want to take revenge for or what he had done to them.  The applicant said when the quarrel took place he also beat them up, and now they are using Shiron to harm him.  Asked whether it is Shiron or Nirmal and Wickrema who really wants to harm him the applicant said Wickrema is the person who is doing that. 

    Asked why Shiron would want to have any part in harming him if he went back to Sri Lanka the applicant said Wickrema instigated that and he has no idea what harm would happen to him.  They are very bad people.

12. At paragraph 58, CB250, the Tribunal said:

    The Tribunal has accepted that the market stall incident occurred as the applicant has claimed, that the police refused to take a report from him and that he was threatened and assaulted by Shiron and his men and Wickrema and Nirmal on two occasions after the market stall incident.  However, the Tribunal notes that the first of these occasions was immediately after the market stall incident and the second was an opportunist attack after a chance meeting.  The Tribunal finds that this indicates that Shiron, Wickrema and Nimal did not actively seek out the applicant at any time following the immediate aftermath of the market stall incident.

13. At paragraph 60, CB251, the Tribunal said:

    The task of the Tribunal is to look forward and consider what would happen in the reasonably foreseeable future if the applicant returned to Sri Lanka.  The Tribunal has found above that the applicant remained in Chilaw and continued to work from Chilaw after the market stall incident and that Shiron, Wickrema and Nirmal did not actively seek him out beyond the immediate aftermath of that incident.  Almost four years have passed since the market stall incident and more than three and a half since the applicant left Sri Lanka;  the Tribunal finds that the passage of several years will have significantly diminished any likelihood that any of the applicant’s former assailants or their associates would seek to harm him if he returned to Sri Lanka.  Further, and as discussed with the applicant, the Tribunal finds that Shiron, his men, Wickrema or Nirmal have got what they wanted in that the applicant no longer has his spot at the market or his successful business, and Wickrema and Nirmal have the market spot;  they would no longer have any motivation to harm the applicant if he returned.  Having regard to all the evidence before it and in the light of the findings above, the Tribunal finds there is not a real chance the applicant would be seriously harmed as a result of the market stall incident or by Shiron, Wickrema, Nirmal or any other person if he returned to Sri Lanka now or in the reasonably foreseeable future.

14. The Tribunal went on to reject the applicant’s claims on the basis of political opinion or ethnicity.  Those matters are not now of any moment.  Likewise, the applicant’s claim as a failed asylum seeker who left Sri Lanka illegally, while rejected, is not of any moment.

Grounds of application

Ground 1:

The Tribunal misdirected itself in considering whether the Applicant had a ‘well-founded’ fear of persecution, by:

a.    finding that fear of assaults that were opportunistic could not amount to ‘well-founded’ fears;

and

b.   asking whether the risk of future harm had ‘significantly diminished’ instead of whether the risk was ‘well founded’.

Ground 2:

The Tribunal misdirected itself in considering whether the Applicant had a ‘well-founded fear of persecution by failing to consider whether there was adequate state protection.

1. I have set these matters out together because they were dealt with in that way by counsel at the hearing before the court.

2. Put shortly, (counsel’s submissions were concise and commendable in their precision), the applicant submitted the Tribunal had fallen into error by failing properly to assess whether the applicant faced a real chance of persecution.  Counsel referred to Chan v Minister for Immigration and Ethic Affairs (1989) 169 CLR 379 and submitted that an applicant will have a well-founded fear of persecution if there is a real chance of it occurring. A real chance is one that is not remote, and testing whether there is a real chance involves discounting prospects that are remote or insubstantial but otherwise does not weigh the prospects of persecution. A real chance may exist even if it is unlikely. It should be noted that these submissions as to the state of the law were not put in issue by the first respondent.

3. The applicant noted that the Tribunal accepted that Shiron and his associates committed the three assaults asserted (it is not necessary to deal with the fourth assertion that the Tribunal did not accept).  It was submitted (see paragraph 13 of the written submissions) that the Tribunal was diverted from its task by resting its decision on two findings, first that the third assault was opportunistic and that Shiron and his associates had not gone out of their way to find the applicant, and, second, that the likelihood of Shiron and his associates assaulting the applicant again had significantly diminished.

4. It was submitted in relation to the finding that the third assault was opportunistic, it did not follow that opportunism means that the likelihood of the event occurring was remote or insubstantial or that it was not unlikely.  A finding of opportunism, it was submitted, is a finding about causation or motivation which says nothing about likelihood.

5. Counsel submitted that a real chance can exist where the chance is as low as 10 per cent (see per McHugh J in Chan) and pressed that there had been no finding by the Tribunal as to how often the opportunity for assault would arise in the event that the application was returned.  It was submitted that the Tribunal had entirely discounted the assaults in its assessment as to whether the applicant had a well-founded fear of persecution.

6. It was further submitted that the use of the words “significantly diminished” suggested a lack of application of the real chance test.  Persecution, it was submitted, is not relative, a submission I accept.

7. The second ground, as the written submissions assert at paragraph 17, “alleges the Tribunal failed to consider the adequacy of state protection”.  It is dependant upon the first ground.  It was submitted that the applicant’s claims squarely raised the issue of effective state protection and that the Tribunal had failed to consider this issue.  It was submitted that this failure, given the inadequacy of the findings as to the real chance of persecution, vitiated the Tribunal’s decision.

8. The first respondent, by way of contrast, submitted strongly that the Tribunal did correctly apply the test to the facts of the case.  Counsel submitted, correctly in my view, that the recitation of the law at paragraphs 6 - 20 of the Tribunal’s decision was both entirely unobjectionable and strongly suggested that the Tribunal had the appropriate law in mind when dealing with the application.  I accept the test set out at paragraph 14 (CB242) is indeed correct.  It was submitted that the Tribunal had indeed properly considered the applicant’s claims of police response and the applicant’s subsequent claims and pointed to the findings made as a result.  The Tribunal laid emphasis on the extract at paragraph 54 CB250:

   Asked what he thought would happen if he returned the applicant, said he cannot predict what would happen.  He is afraid of future events.  These people are powerful.  If he is captured, people with power can harm him.  He is worried that he picked a fight with people in power.

9. Counsel pointed to the first sentence of paragraph 60, “The task of the Tribunal is look forward and consider what would happen in the reasonably foreseeable future if the applicant returned to Sri Lanka.”.  It was submitted that the Tribunal had, in substance, applied that test in the remainder of the paragraph. 

10. In the ultimate, the task for the Court is to read the Tribunal’s decision fairly and as a whole and to form a conclusion as to whether or not the Tribunal properly understood its task and properly performed it.  I agree with the submission made by the first respondent, quoting the judgment of Jessup J in MZAJG v Minister for Immigration and Border Protection [2016] FCA 1045 at [10]:

    at best, what the appellants have sought to do here was to conduct minute examination of the verbiage employed by the Tribunal, with their eyes zealously attuned to the detection of error.  This is an approach which has repeatedly been rejected by the courts…

11. In the ultimate, the Tribunal noted that there had been three assaults on the applicant.  One at the market store and one the day after and one some time later, the latter of which the Tribunal characterised, reasonably enough in my view, as opportunistic.  The Tribunal noted the very substantial passage of time since these events had occurred.

12. While it is true that the Tribunal did not expressly find that no further assaults would take place, in my view, a fair reading of the Tribunal’s decision, and in particular the conclusion set out at paragraph 60, support the conclusion that that is in fact what the Tribunal in substance found.  It was in my view a finding well open to the Tribunal on the facts.

13. Given that this is the case, the issue of State protection simply does not arise. 

Conclusion

1. The applicant’s grounds have not been established and it follows that the application will be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 24 November 2016