ACI15 v Minister for Immigration and Anor (No.2)
[2017] FCCA 261
•28 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACI15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 261 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka on various bases – applicant disbelieved in critical respects – whether the Tribunal overlooked an integer of a claim based on documents submitted after the Tribunal hearing considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 197 ALR 389 Minister for Immigration vSarrazola(No.2) (2001) 107 FCR 184 MZWPD v Minister for Immigration [2006] FCA 1095 NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 Paramananthan v Minister for Immigration (1998) 94 FCR 28 Sellamuthu v Minister for Immigration (1999) 90 FCR 287 SZGUW v Minister for Immigration [2008] FCA 91 SZGUW v Minister for Immigration (2009) 108 ALD 108 |
| Applicant: | ACI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 541 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 30 January 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 541 of 2015
| ACI15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 30 January 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka who arrived in Australia on 28 June 2012 as an unauthorised maritime arrival and he applied for a protection visa on 6 November 2012. The applicant claimed to fear harm upon return to Sri Lanka on the basis of his Tamil ethnicity, an actual or imputed political opinion that was anti-Government, and as a member of variously described particular social groups including young Tamil men who have escaped to and claimed asylum in a western country. A central feature of the applicant’s asserted fear of harm was his claim to have been harassed and targeted by the Criminal Investigation Department (CID) and the Sri Lankan Army (Army), and to have experienced trouble when a Buddhist monk tried to take over his family land (Land Dispute claim).
In his statement the applicant claimed a fear of persecution mainly because:
a)he had had his photo taken by the CID and in 2012, when he was living in Trincomalee the CID started arresting people whose photos had been taken. Three hundred young people had been arrested in Trincomalee including 20 from his village[1]. The Tribunal found that nothing would flow from that and nothing arises therefrom in the present proceedings;
b)relevantly to the present proceedings, he claimed that land that his family owned was the object of an attempted takeover at the instigation of a monk.
[1] Court Book (CB) 59-60
The Land Dispute claim was that in 2006 the monk desecrated a Hindu temple in Kallady Village, in front of land owned by the applicant’s family, by putting (or throwing) the Hindu statue therein on to the side of the road and putting a Buddhist statue in the temple[2]. In 2008 the monk tried to take over the family land by having the Army move onto it. The applicant argued with the monk about this. He was able to produce proof of ownership and the Army moved out[3].
[2] CB 58-9; Transcript (T) 12
[3] CB 59 [6]-[7]
This did not end the matter. In 2008 the monk, whom the applicant believed to have previously been with the CID, started threatening him. At hearing the applicant gave evidence through an interpreter as follows[4]:
So the Buddhist monk he was actually using a CID to actually threaten us, and um, it was a CID whom he knew, he was threatening us over the phone. And the CID’s name is [J] …
[4] at T 13
The CID called the applicant for a meeting to be held at 8.00 pm one evening. The applicant did not go, fearing that he would be shot[5].
[5] T 29
In a submission dated 31 October 2012[6], it was argued that the kind of land grab that the applicant described i.e. the Land Dispute claim, has been documented as occurring in Sri Lanka with little or no redress to the original owners.
[6] at CB 94-102 but sent on 14 May 2013 – CB 93
The Army and other security forces are present in considerable strength in the traditional Tamil areas of the north and east of Sri Lanka and act essentially as an army of occupation. Their actions include razing burial grounds and memorials to make way for security force infrastructure, and their own memorials, some adorned with Buddhist symbols, which commemorate the Army’s victory[7].
[7] especially CB 98-9
The delegate refused to grant the applicant a visa on the basis that she was not satisfied that the applicant was entirely credible in presenting his claims to fear harm[8]. The applicant applied to the Tribunal for review. The Tribunal invited the applicant to appear at a hearing[9], which the applicant attended[10]. Following the hearing, the applicant’s migration agent supplied translations of various news articles and other documents to the Tribunal[11].
[8] CB 112-116
[9] CB 138-139
[10] CB 142-143
[11] CB 145-158
The application was rejected on 16 July 2013[12], and the application for review was lodged on 24 July 2013[13]. The hearing was held via videolink on 6 January 2015 and the Tribunal gave the applicant time to submit further documents[14]. On 30 January 2015 the applicant’s migration agent submitted certified translations of documents including the following:
a)extract of a “Tamilwin” article dated 8 October 2012 in which it was reported that the Malaineellamman Temple in Eachilampattai had been replaced by a Buddhist temple and the land adjacent had been handed over to the Buddhist temple[15];
b)another “Tamilwin” article dated 9 November 2014 which reported that a Buddhist priest forcibly acquired land and a building used as a pre school by Tamils in Verugal, Trincomalee[16];
c)a third “Tamilwin” article, dated 6 December 2012 which referred to an accelerated program to construct Buddhist temples in areas where Buddhists do not live, and that there had been planned colonisation of formerly Tamil majority areas by Singhalese[17].
[12] CB 103-123
[13] CB 125-130
[14] T 33
[15] CB 148
[16] CB 149
[17] CB 155-6
The Tribunal decision
On 30 January 2015 the Tribunal affirmed the decision under review[18]. The Tribunal summarised the claims made by the applicant at [9] of its decision record. The applicant claimed to be a Tamil of the Hindu religion who in 2006 during the civil war moved with his family from Verugal to Batticaloa. He worked in a refugee camp, funded by Oxfam, and in 2007 when his family returned to Verugal the CID took photographs of young people returning, and made arrests. The applicant, and others, were issued with “refugee cards”. In March 2012 the applicant made a complaint to the Sri Lanka Human Rights Commission in relation to the treatment of people by the CID. The applicant further claimed that he had problems concerning a monk who wanted to build a temple next to a Hindu temple on his sister’s land. This led to the monk making threats against the applicant and his family from 2008-2009. The applicant had heard that the monk was previously a member of the CID. In 2012 the applicant decided to leave Sri Lanka because the CID began arresting people who they had photographed in 2007.
[18] CB 163-185
The Tribunal noted that in relation to the complaint the applicant made to the Sri Lankan Human Rights Commission, the applicant gave varied explanations at the protection visa interview regarding the content of the complaint[19].
[19] [12]
The Tribunal was not satisfied that the applicant had ever been of adverse interest to the CID or other authorities in Sri Lanka because of an imputed anti-Government political opinion, either through suspicion of Liberation Tigers of Tamil Eelam (LTTE) involvement or arising from the land dispute with the monk. In particular:
a)the Tribunal had concerns as to the credibility of the applicant’s claims to be at risk of harm from the CID, in particular due to the applicant making fresh claims at the Tribunal hearing about having received LTTE training in Verugal, a failure to substantiate how having his photograph taken by the CID would lead to harm and the fact that he was issued with a passport in his own name in May 2007;
b)the Tribunal considered a document said to be the text of the complaint the applicant lodged with the Sri Lankan Human Rights Commission. The Tribunal accepted that the applicant had made such a complaint but was not satisfied that in doing so “he registered a fear of being arrested by the CID (or the State Intelligence Services) on the basis of having been issued with an identity card in 2007, as stated in the document he has submitted”[20];
c)the Tribunal was unconvinced as to the claims involving the monk. Whilst accepting as a fact that there was a dispute with a local monk over land, the Tribunal was not satisfied that the applicant faced harm from the monk. In particular, the Tribunal observed that there was no complaint made by the applicant of any adverse attention from the monk after 2009, which was at odds with other claims made by the applicant that his problems did not begin until 2009-2010.
[20] [22]
The Tribunal was further not satisfied that:
a)the applicant would be imputed with a political opinion adverse to the Government by reason of his Tamil ethnicity, or the fact that he would return to Sri Lanka as a failed asylum seeker[21];
b)the applicant faced a fear of harm on the basis of his ethnicity[22];
c)the applicant possessed the characteristics of individuals who upon return to Sri Lanka in the past had been subjected to torture and abuse, that is, those suspected of links with the LTTE[23];
d)the applicant’s membership of any particular social group was the basis for a fear of harm, acknowledging that the applicant would, on return to Sri Lanka, be subject to immigration processes as well as criminal sanction for breach of immigration laws, including arrest and detention[24];
e)the applicant’s unlawful departure from Sri Lanka might create or exacerbate a risk of harm, reasoning that the applicant might be arrested and fined upon return to Sri Lanka for immigration law breaches, and might be held on remand for a short time, but that such treatment arose from the non-discriminatory imposition of a law of general application[25].
[21] [25]-[27]
[22] [32]
[23] [37]
[24] [41]-[45]
[25] [46]-[52]
The Tribunal found that the applicant did not have a well-founded fear of persecution, or that there was a real risk that the applicant would suffer significant harm as a consequence of his return to Sri Lanka[26].
[26] [53]-[57]
The current proceedings
These proceedings began with a show cause application filed on 4 March 2015. That application was summarily dismissed by another judge of this Court on 2 April 2015. On appeal to the Federal Court, that decision was set aside by consent and the matter was remitted to this Court for rehearing. The applicant now relies upon an amended application filed on 30 January 2017. There is one particularised ground in that amended application:
1. The Tribunal failed to complete the exercise of its jurisdiction.
Particulars
(a) Failure to consider the applicant’s claims about his fear of persecution stemming from the actions of a Buddhist monk in the context of documents submitted post hearing.
(b) Failure to consider what may reasonably be inferred from documents submitted post hearing.
In addition to the book of relevant documents filed on 2 October 2015, I have before me as evidence the affidavit of Freshta Nawabi made on 15 January 2017, to which is attached a transcript of the Tribunal hearing conducted on 6 January 2015. Both the applicant and the Minister prepared pre-hearing written submissions and also made oral submissions at the trial of this matter on 17 February 2017. I have been assisted by those submissions.
Consideration
Applicant’s contentions
The applicant asserts that the Tribunal overlooked a material claim (or perhaps more correctly an integer of a claim).
The facts found by the Tribunal were that:
a)the applicant had had a dispute with a monk who desecrated a Hindu temple and tried to take the applicant’s family land by having the Army occupy it;
b)the applicant disputed the attempted takeover of his family land;
c)the applicant was able to prove ownership when approaching the Army, after which the Army vacated the land;
d)after this, the monk’s friend or contact in the CID made a series of what the Tribunal found to be empty threats against the applicant, but nothing after 2009.
What the applicant submits was not considered by the Tribunal was the evidence of what happened after that. That evidence was:
a)that the applicant lived in his village until December 2011[27];
b)by October 2012 what was almost certainly the Hindu temple referred to by the applicant in his claims had been replaced by a Buddhist temple and the adjacent land handed to the Buddhist temple[28]. On the evidence there is said to be a fair inference that this land was that which had been owned by the applicant’s family.
[27] CB 56
[28] CB 148
There had been a pattern of seizure of land in Tamil documented areas for the construction of Buddhist temples and the colonisation of land in such areas by Singhalese[29].
[29] CB 148, 155
The relevant legal principles include that 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[30].
[30] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at 58; Paramananthan v Minister for Immigration (1998) 94 FCR 28 at 63 (Merkel J); Sellamuthu v Minister for Immigration (1999) 90 FCR 287 at 293 – 294 [23] per Wilcox and Madgwick JJ); Minister for Immigration vSarrazola (No 2) (2001) 107 FCR 184 at 186 [1], [3], 196 [42]
Also, the Tribunal must consider the claims that it does accept cumulatively and in their context[31].
[31] SZGUW v Minister for Immigration [2008] FCA 91 (Jacobson J); SZGUW v Minister for Immigration (2009) 108 ALD 108 (Reeves J), MZWPD v Minister for Immigration [2006] FCA 1095 at [69]
The effect of the above is that the Tribunal is under an obligation to assess the case raised by its factual findings against all relevant criteria, including those relevant to s.36(2)(aa) of the Migration Act 1958 (Cth), and must consider the cumulative effect, or totality, of those findings.
The applicant submits that the Tribunal did not consider what may reasonably be inferred from the evidence submitted after the hearing. It may be noted that the applicant arrived in Australia in June 2012[32], which predates the document at CB 148. The questions which arise are first whether, if the applicant were to return to Sri Lanka, he would seek to challenge the replacement of the Hindu temple and the takeover of his family land, and if so whether, in view of what appears to be an officially condoned policy of colonisation of what were traditionally Tamil areas, he would face a well-founded fear of persecution if he did so.
[32] CB 4
Thus, in the applicant’s submission, there was a failure of the Tribunal to consider the entirety of the case before it, and so failed to complete the exercise of its jurisdiction.
Minister’s contentions
The Minister submits that the applicant’s argument relies upon an over-extension of the principle from NABE[33]. However, as the Full Federal Court itself stated in NABE, a finding that the Tribunal failed to consider a claim not expressly advanced should not lightly be made[34]. Further, the Full Court in addressing the issue in that case, cited the law at the time, which remains good law, that the Tribunal need only consider a “substantial, clearly articulated argument relying on established facts”, citing Dranichnikov v Minister for Immigration[35]. In NABE itself, the Minister contended, successfully, that the “claim” not considered by the Tribunal, which was said by the appellant to have arisen squarely on the evidence, was not a separate claim but an aspect of a claim that was considered by the Tribunal.
[33] [58]
[34] [68]
[35] [2003] HCA 26; (2003) 197 ALR 389
Such is said to be the case in the present matter. The documents relied on (Identified Documents) do not of themselves raise any claim of feared harm by the applicant that the Tribunal did not address. Rather, at the highest, the Identified Documents refer to information that was (potentially at best) referrable to the Land Dispute claim. Further, in contradistinction to NABE, in which the Tribunal had made a factual error in the consideration of the appellant’s claims, the applicant points to no factual error by the Tribunal in the present case. The Tribunal should be taken to have been aware of the documents the applicant sent to it following the hearing, including the Identified Documents, as it makes express reference to some of those documents, including in connection with the applicant’s claim in respect of the Land Dispute claim. For instance, at [23], the Tribunal states that “One of the media reports appears to confuse the matter further with a reference to ‘Kalladi, Verugal’ in ‘Trincomalee’”, which appears to be a reference to the document at CB 149 involving a report of a Buddhist priest. The Tribunal’s findings set out at [23]-[24][36] “exhaustively and entirely” addressed the Land Dispute claim.
[36] CB 176-177
Resolution
The applicant submits, at [14] of his written submissions, that the Tribunal did not consider the contents (or particular content) of the Identified Documents[37], with the effect that the Tribunal failed to consider a claim arising, but not expressly articulated, by the applicant. The applicant relies on the principle stated in cases such as NABE[38].
[37] appearing respectively at CB 56, CB 148 and CB 155
[38] at [58]
The applicant contends that the Tribunal failed to consider the entirety of the case before it and submits, at [18], that the questions which arise from the Identified Documents are “firstly, whether, if the applicant were to return to Sri Lanka, he would seek to challenge the replacement of the Hindu temple and the takeover of his family land, and if so whether, in view of what appears to be an officially condoned policy of colonisation of what were traditionally Tamil areas, he would face a well-founded fear of persecution if he did so.”
The ground advanced by the applicant, while arguable, is not made out. I prefer the Minister’s submissions in relation to the ground of review. In particular, I accept the Minister’s submission that a clearly articulated claim, divisible from the claims already before the Tribunal, does not arise squarely from the material made available to the Tribunal after the Tribunal hearing.
The information contained in the Identified Documents was only potentially, at best, referrable to the Land Dispute claim because there is something of a leap to be made between the claims the applicant advanced, and the nature of the information conveyed in the Identified Documents. I accept that nothing turns on the information in the document at CB 56. Further, the document at CB 149 was referred to by the Tribunal at [23][39].
[39] CB 176
Focussing then on the two remaining Tamilwin articles[40], the former refers to a Hindu temple in Eachilampattai. On its face, there is no reason to conclude that the temple mentioned is located at the site of the Land Dispute referred to in the applicant’s protection claims (as the applicant appears to contend in his submissions at [14]). The Tribunal certainly did not expressly draw the connection. Even presuming that this article did concern the same land, it is unclear how the information in the document could support the Land Dispute claim. If anything, the information in the document suggests that the monk succeeded in his ambitions to secure that land, which would mean he would have no reason to threaten the applicant. Further, counsel for the Minister noted that the article at CB 148 contains only two paragraphs of what is presumably a longer article, the full version of which was not given to the Tribunal. In my view, nothing on CB 148 points to an integer of a claim not considered by the Tribunal.
[40] at CB 148 and CB 155
Turning to the article at CB 155, the most that can be said of this article is that is refers to an apparent accelerated construction of Buddhist temples in North and East Sri Lanka. It cannot be said that any integer of a claim arises out of such general information. As the Full Federal Court said in NABE[41], the Tribunal cannot be expected to engage in “constructive or creative activity” in order to discern a claim not expressly advanced by a review applicant. This is what the applicant’s argument requires the Tribunal to have done.
[41] at [58]
In short, the applicant has not established that any “claim”, or indeed any integer of a claim, of the kind relevantly discussed in NABE, arose from the Identified Documents. The information in the Identified Documents was at best peripheral to the claims advanced by the applicant in support of his protection claims, and did not contain information from which any claim not addressed by the Tribunal squarely or clearly arose. To the extent that the Identified Documents had a bearing on the credibility of the Land Dispute claim I am unable to conclude that they were not considered.
The applicant makes a related submission, at [16] of his written submissions, that the Tribunal must consider the claims that it does accept cumulatively and in their context, citing SZGUW v Minister for Immigration[42]. It is instructive to cite [54] of that case, where Jacobson J said:
As Weinberg J said in MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69], the Tribunal was bound to consider each incident of alleged persecution, not merely in isolation but also in conjunction with the others. An act that might not amount to persecutory conduct involving serious harm when viewed in isolation may do so when considered in its full context.
[42] [2008] FCA 91
The requirement on the Tribunal to consider claims “in their context”, or put another way, the requirement for the Tribunal to consider the “totality of the case”, addresses the situation where a series of discrete events, when taken together, may point to the establishment of the relevant risk of harm in circumstances where taken singularly, or out of context, any one of the discrete events might not establish the relevant risk of harm.
I accept the Minister’s submission that the present case is different from those in which such principles might apply. The applicant never claimed to have an intention of returning to Sri Lanka to challenge the replacement of a Hindu temple or the colonisation of traditionally Tamil areas. The claims he raised were considered, and no implicit claims arose squarely from the materials as contended by the applicant. Further, the Tribunal expressly stated that it had considered the applicant’s claims cumulatively[43]. There is no basis in the material before me to doubt that statement. The Tribunal did not fail to consider any of the applicant’s claims in their context.
[43] see [53] and [55]
Conclusion
I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 March 2017
9
2