AAL15 v Minister for Immigration and Border Protection
[2018] FCA 258
•9 March 2018
FEDERAL COURT OF AUSTRALIA
AAL15 v Minister for Immigration and Border Protection [2018] FCA 258
Appeal from: AAL15 v Minister for Immigration and Border Protection [2016] FCCA 2990 File number: VID 1428 of 2016 Judge: GRIFFITHS J Date of judgment: 9 March 2018 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – whether the primary judge erred in finding that the Refugee Review Tribunal applied the correct test as to whether the appellant had a well-founded fear of persecution – appeal dismissed, with costs Legislation: Migration Act 1958 (Cth) Cases cited: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; 191 CLR 559
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936
Date of hearing: 9 March 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 31 Counsel for the Appellant: The appellant appeared in person, with the assistance of an interpreter Counsel for the First Respondent: Mr L Brown Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Appellant: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 1428 of 2016 BETWEEN: AAL15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
9 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA). The judgment is reported as AAL15 v Minister for Immigration and Border Protection [2016] FCCA 2990.
On 27 April 2017, the then docket judge adjourned the hearing of the appeal pending the High Court’s decision in SZTAL v Minister for Immigration and Border Protection S272/2016 and the related appeal in S273/2016.
The High Court has since delivered its judgments in those two matters (see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936).
Background facts summarised
The appellant is a citizen of Sri Lanka. He arrived in Australia in 2012 as an irregular maritime entry. With the assistance of a migration agent, on 8 November 2012, he applied for a protection visa.
The appellant provided a statutory declaration dated 3 November 2012 in support of that application. He claimed that he had experienced problems in a market in Sri Lanka where he worked with other rivals who were Sinhalese, that in March 2011 he was threatened by thugs who were affiliated with a local politician, who was also a government Minister, in circumstances where the appellant supported a rival political party, namely the United National Party (UNP). He also claimed that the police had failed to act on his complaint that the thugs had dispersed his goods at the market.
The appellant’s statutory declaration contained more details regarding his claims, and included identifying the driver of the vehicle in which the thugs had travelled to the market where the appellant worked. The appellant said that the car was driven by a man whom I will refer to as S, who was one of the main election coordinators for the local politician / Minister. He claimed that S had slapped his face, pulled out a pistol and pushed him to the floor, and that his goods were then thrown into the street by four thugs. He said that S threatened to kill him if he continued to occupy his market stall. He claimed that S and his men had beaten him the following day at his house, and that he could no longer work as a street vendor at the market. He claimed that about two months before he left Sri Lanka, he was inside a parked bus at the market area and S saw him and then verbally and physically assaulted him.
The appellant claimed that if he returned to Sri Lanka, he feared that the rival market vendors and S’s men would seriously harm and kill him as he had refused to vacate the area in the past, and they would seek revenge for his actions because he is also a Tamil and UNP supporter.
The delegate accepted that the appellant had owned a successful shop in the market and had a dispute with his rival market vendors. The delegate did not accept, however, that the rivals had forcibly acquired the appellant’s shop or that either the rival vendors or S “had immunity from the Sri Lankan justice system due to an imputed or actual connection with a government Minister”. This claim was described by the delegate as highly unlikely having regard to the absence of any evidence to support it.
The appellant sought a review of the delegate’s decision in the Refugee Review Tribunal (now the Administrative Appeals Tribunal (Tribunal)). He was represented by a solicitor, who made submissions on his behalf which, in substance, reiterated his earlier claims. The appellant also gave evidence at the Tribunal hearing.
In its reasons for decision dated 30 January 2015, the Tribunal accepted that the appellant had argued with rival market vendors and was assaulted and threatened by S. It accepted that the appellant’s store was destroyed. It accepted that the appellant’s Tamil ethnicity may have fuelled resentment of his business success. However, the Tribunal did not accept that the appellant was attacked and his store destroyed because of his “actual or imputed political opinion”. The Tribunal accepted that the appellant had assisted a local UNP candidate in 1994 and that he regarded himself as a UNP supporter, but it noted that he stated that he had not been politically active since 1994. The Tribunal found that the appellant did not have “a current political profile”.
As to the claims regarding S and the local politician / Minister, at [38] of its reasons for decision, the Tribunal described as “implausible” that such a politician would “have either the time or the need to get S and his thugs to ‘do his dirty work’ in order to prevent the [appellant] from resuming his trade…at the…market”. The Tribunal did not accept that S or his associates acted at the behest of the politician, or that they attacked the appellant on that basis. The Tribunal found at [38] that, on the evidence before it, it did not accept that the politician had targeted the appellant, or had any knowledge or interest in the attack on him.
The Tribunal accepted at [41], however, that, when he complained to the police, the appellant was told that they could not accept the complaint and that he should discuss it with S. The Tribunal noted at [43] that the appellant had been “broadly consistent” in his claims regarding the events involving S and his associates. It accepted that S and his men had come to the appellant’s house shortly after the market stall incident and hit and threatened him. It also accepted that the appellant had been abused and assaulted at the bus stand approximately one year later. The Tribunal did not accept the appellant’s claim that a rival trader had told him that S threatened to “deal with him” during the forthcoming election because the appellant had not been politically active since 1994 and was not a known or suspected active supporter of the UNP. The Tribunal also found that there were some apparent inconsistencies in the appellant’s evidence regarding the work he and his wife did after the market stall incident. It found that, despite the market stall incident, the appellant continued to work in the area and make a living, even though he did not seek to regain his market stall.
On the issue whether the Tribunal was satisfied that there was a real chance that the appellant would be seriously harmed if he returned to Sri Lanka, the Tribunal found that, while it accepted that the market stall incident had occurred and that S and his two men threatened and assaulted the appellant on two occasions after the market stall incident, because the first of those events occurred immediately after the market stall incident and the second was “an opportunist attack after a chance meeting”, this indicated that S and the rival market vendors did not “actively seek out the [appellant] at any time following the immediate aftermath of the market stall incident” (at [58]). This led the Tribunal to the following conclusion at [60] (pseudonyms have been inserted):
60.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…and continued to work from…after the market stall incident and that S, W and N 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 S, his men, W or N have got want they wanted in that the applicant no longer has his spot at the market or his successful business and W and N 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 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 S, W, N or any other person if he returned to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal also explained why it did not accept that there was a real chance or risk that the appellant would be imputed with an anti-government or pro-LTTE political opinion, and why it did not accept the appellant’s claims concerning his Tamil ethnicity and the fact that he was a failed Tamil asylum-seeker who left Sri Lanka illegally.
The Tribunal adopted similar reasons in rejecting the appellant’s claim for complementary protection.
The FCCA proceeding
The appellant raised three grounds of review in an amended application for judicial review, filed on 24 November 2015. The first ground was that the Tribunal had denied the appellant procedural fairness by not giving him an opportunity to contradict the Tribunal’s adverse findings concerning the reliability of his claims. The second ground was that the Tribunal had taken into account irrelevant considerations, by reference to various matters concerning the local politician / Minister. The third ground was that the Tribunal had applied the wrong legal test in considering the complementary protection criterion.
It appears that these grounds were reformulated by the appellant’s then counsel at the FCCA hearing in a second amended application for judicial review, filed on 29 September 2016 (see the primary judge’s reasons for judgment at [1]). The primary judge stated at pages 9-10 of his Honour’s reasons for judgment that the appellant relied upon the following two grounds of judicial review (without alteration):
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.
At [30], the primary judge explained that the matters had been set out together “because they were dealt with in that way by counsel at the hearing before the court”.
The primary judge did not accept either of the grounds. As to the first, his Honour found that the Tribunal had correctly described and applied the relevant legal principles in authorities such as Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 and that it stated the correct test at [14] of its reasons for decision. His Honour accepted the submission of the Minister’s counsel that the Tribunal correctly stated at [60] of its reasons for decision that its task was to “look forward and consider what would happen in the reasonably foreseeable future if the [appellant] returned to Sri Lanka”, and that this was the test which was applied, in substance, in the balance of that paragraph.
At [36], the primary judge referred to the appellant’s written submissions, which described the second ground as alleging that the Tribunal had failed to consider the adequacy of State protection. The primary judge described this ground as being dependant upon the first ground. At [39], the primary judge described the Court’s task to read the Tribunal’s reasons for decision “fairly and as whole and to form a conclusion as to whether or not the Tribunal properly understood its task and properly performed it”. The primary judge found that the appellant’s approach was inconsistent with established authorities concerning the parsing of reasons for decision.
It is desirable to set out [40] to [42] of the primary judge’s reasons for judgment:
40.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.
41.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.
42.Given that this is the case, the issue of State protection simply does not arise.
The appeal
The sole ground of appeal is as follows:
1.His Honour erred in failing to find that the Second Respondent’s conclusions that:
a. the assaults committed against the Appellant were opportunistic;
b. the risk of future harm had ‘significantly diminished’; and
were incorrect applications of the test of whether the Appellant had a ‘well-founded’ fear of persecution.
The parties’ submissions summarised
The appellant did not file any outline of written submissions. He represented himself in the appeal, with the assistance of an interpreter. His oral submissions may be summarised as follows. He said that he had protection here in Australia, but that he would not be protected if he were returned to Sri Lanka because things have gotten worse there, not better. He said that there were problems in the last two or three days and that people had come to his family home and asked for money, and that one of the people he had had problems with was a member of the Council. When it was pointed out that he had not filed any written statement in relation to these matters, or sought the Court’s leave to adduce new evidence, the appellant said that he was unable to obtain evidence on these matters and had made a conscious decision not to supply fraudulent documents.
It is unnecessary to summarise the Minister’s submissions because they are substantially reflected in my reasons for dismissing the appeal.
Analysis
The appellant’s sole ground of appeal is that the primary judge erred in not finding that the Tribunal had applied the incorrect test as to whether he had a well-founded fear of persecution. This ground is rejected for the following reasons.
First, as the primary judge noted at [37] of his Honour’s reasons for judgment, the Tribunal’s description of the relevant law in [6] to [16] of its reasons for decision discloses no error. The Tribunal plainly proceeded on the basis that the test was forward-looking and involved an assessment of whether the Tribunal was satisfied that the appellant faced a “real chance” of being persecuted (see also [21] of the reasons for decision).
Secondly, it is true that the Tribunal made findings about past events, but it is well settled that, in assessing a future risk of harm, it is relevant to inquire whether the visa applicant has suffered persecution in the past: see, for example, Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Their Honours said at 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events…
Thirdly, it is plain that the Tribunal addressed and made relevant findings of fact concerning the future risk of harm, taking into account the matters set out in [60] of its reasons for decision.
Fourthly, to the extent that the appellant complains about the Tribunal’s characterisation of the assault incident inside the parked bus as “opportunistic”, no appealable error has been established. That characterisation simply reflects the Tribunal’s view that the incident resulted from a chance encounter and did not form part of a wider campaign to target the appellant.
Finally, to the extent that the appellant complains of the Tribunal’s reasoning that any risk to the appellant was “significantly diminished” because of the passage of time, the Tribunal reasoned that, as four years had passed after the market stall incident and a further three and a half years had passed since the appellant left Sri Lanka, this effluxion of time significantly diminished any likelihood that S and his associates would seek to harm the appellant if he were to return to Sri Lanka. I am not satisfied that this process of reasoning discloses any appealable error.
Conclusion
For these reasons, the appeal should be dismissed and the appellant ordered to pay the first respondent’s costs as agreed or assessed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 9 March 2018
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