ACI16 v Minister for Immigration

[2016] FCCA 3243

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACI16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3243

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether Tribunal erred in making finding as to country of nationality – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.31, 36(2)(a), 36(2)(aa)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), items 3, 14 and 22 in s.2, item 10 in pt.2 of sch.5, item 28 in pt.4 of sch.5

Cases cited:

AZK15 v Minister for Immigration & Border Protection [2015] FCA 1444

CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146
Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105

Articles and other material cited:

James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014)
Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees HCR/IP/4/Eng/REV.1 (January 1992) 87

Applicant: ACI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 57 of 2016

Judgment of: Judge Smith

Hearing date: 29 November 2016

Date of Last Submission: 6 December 2016

Delivered at: Sydney

Delivered on: 16 December 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms H. Musgrove, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 57 of 2016

ACI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a national of Sri Lanka, who was born in a refugee camp in the district of Tamil Nadu in India. The applicant arrived in Australia as an unauthorised maritime arrival on 12 February 2013 after leaving India by boat without travel documents. On 28 February 2013, the applicant applied for a protection visa on the grounds that he claimed to fear harm from the authorities of Sri Lanka if returned there.

2. On 17 February 2014, a delegate of the Minister refused to grant the applicant a protection visa. The applicant applied for review of that decision and on 8 December 2015, the Administrative Appeals Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.

The applicant’s protection visa claims

1. The applicant’s application for a protection visa was based on the following claims.

2. The applicant is a Sri Lankan Tamil whose family originate from the Vavuniya province, Sri Lanka. His family left Sri Lanka in 1990, prior to the applicant’s birth due to the escalation of ethno-religious violence between the Sinhalese and Tamil population. The applicant was born in a refugee camp in India and the family moved to another camp in Chennai in 1992. The applicant’s parents were both citizens of Sri Lanka.

3. In 1992, the applicant’s father returned to Sri Lanka to fight with the Liberation Tigers of Tamil Eelam (LTTE). He was shot and died within two months of returning to Sri Lanka. The applicant had no specific knowledge of this incident and claimed to have no contact with any members of his father’s family in Sri Lanka, or to have any support network there. The applicant’s mother remarried and remains in India along with the applicant’s siblings and his stepfather.

4. The applicant claimed he left India because his life was unbearable. He had lived in a refugee camp his entire life and his activities inside the camp were heavily restricted by Indian authorities. The applicant claimed Tamil refugees were badly mistreated and were subjected to beatings by officers of the Indian Crime Branch (ICB). He claimed that on one occasion he spoke back to the officers of ICB, who took him back to the local police station and detained him for two days. During this time, he was forced to work like a slave in the police station.

5. The applicant claimed to fear going to Sri Lanka as he has spent his whole life in India and he did not know what his extended family’s life was like in Sri Lanka. Further, it was not safe for him to go to Sri Lanka because of his father’s connection to the LTTE and imputed political opinion. The applicant also claimed that he would be required to show his birth certificate to obtain Sri Lankan identity documents which would make the applicant readily identifiable to the LTTE and government officials.

Tribunal’s decision

1. The Tribunal found that the applicant was a citizen of Sri Lanka, was eligible for Sri Lankan citizenship and that Sri Lanka was the applicant’s country of reference and receiving country. It will be necessary to return to the Tribunal reasons for these findings.

2. The Tribunal found the applicant’s evidence to be credible; however it was not satisfied that the applicant faced a real chance or risk of suffering serious or significant harm in Sri Lanka.

3. The Tribunal was not satisfied that the applicant’s father was an LTTE fighter who was killed during the course of the conflict in 1992. However, it could not discount this as a remote possibility and accordingly proceeded on the basis that the applicant’s father did fight for the LTTE. It found that the applicant’s father was not a high profile LTTE combatant or held a senior position with the LTTE.

4. In any event, the Tribunal did not accept that, even if the authorities were aware of the applicant’s father, they would see the applicant as a present threat as the applicant’s identity documents made it clear that the applicant has never resided in Sri Lanka and that he was very young when his father was killed.

5. The Tribunal then considered the country information and formed the view that the applicant’s profile as a Tamil originating from an area formerly controlled by the LTTE, did not give rise to a need for protection. In addition, the Tribunal did not accept that scarring was used as a basis for detaining and interrogating Tamils.

6. The Tribunal accepted that upon the applicant’s return to Sri Lanka he may be questioned and checked at the airport by the Sri Lankan authorities. However, it was not satisfied that such questioning and checks upon arrival, or being subjected to ongoing registration and monitoring amounted to serious or significant harm. The Tribunal did accept that the applicant may have some difficulties in relocating and establishing himself in Sri Lanka however, did not accept that such difficulties would amount to serious or significant harm.

7. In considering all of the matters before it, both individually and cumulatively, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Sri Lanka.

Consideration

Ground one

1. There are two grounds in the application. The first is that the Tribunal asked itself the wrong question. The particulars to the ground are:

   (a)Even though under Sri Lankan Citizenship las (sic) the applicant I may be eligible for citizenship, I was born in India and I have never held Sri Lankan citizenship and I am stateless; and

   (b)The Tribunal erred in [81] assessing whether there was a real risk of serious or significant harm based on the erroneous finding that I am a citizen of Sri Lanka

2. The ground is totally at odds with the applicant’s protection visa claims in which he consistently claimed that he was a Sri Lankan citizen and feared harm if he were to be sent to Sri Lanka: see court book at pg.1, 42, 60, 67, 69 and 94. Nevertheless, given that the applicant was not born in Sri Lanka, the Tribunal spent some time explaining why it accepted that Sri Lanka was the applicant’s “country of nationality” for the purposes of determining whether he satisfied the criteria for the grant of a protection visa:

   [81]The Tribunal finds that the applicant is a national of Sri Lanka. Although the applicant was born in India, he has denied ever obtaining an Indian passport or establishing permanent residency there. The applicant claimed that his parents were Sri Lankan citizens and he has always assumed that he is also a Sri Lankan citizen. The Tribunal notes that the applicant’s identity documents include a Sri Lankan Refugee Identity Card issued by the government of Tamil Nadu and a Sri Lankan Refugees Identity Register. The applicant’s birth certificate names his parents. Section 5 of the Sri Lankan Citizenship Act No. 18 of 1948 states that any person born outside of Sri Lanka whose mother was a citizen of Sri Lanka at the time of his birth shall be eligible for citizenship. The country information referred to above indicates that the Sri Lankan government is willing to recognise the citizenship of, and provide identity documents to, children of Sri Lankan refugees born in refugee camps in India. Accordingly, the Tribunal is satisfied that Sri Lanka is the applicant’s country of reference and receiving country for the purposes of this application.

3. The terms “country of reference” and “receiving country” require some explanation.

4. The Migration Act1958 (Cth) empowers the Minister to grant a non‑citizen a visa to remain in Australia. Section 31 of the Act provides for prescribed classes of visas, and authorises the making of regulations prescribing criteria for a visa or visas of a specified class. A non‑citizen who wants a visa must apply for a visa of a particular class.

5. Once a valid application for a visa has been made, the Minister must consider that application. If he or she is satisfied amongst other things, that the criteria for the grant of that visa have been satisfied, he or she is to grant the visa. If not so satisfied, the visa must be refused.

6. One class of visa is the protection visa. Two of the criteria for the grant of a protection are found in sub-ss.36(2)(a) and 36(2)(aa) of the Act. Those criteria underwent significant changes with effect from 16 December 2014; however, as the applicant applied for a protection visa on 28 February 2013, those amendments did not apply to him.

7. One matter about those amendments ought to be mentioned in passing. The amending Act was the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“Amending Act”) which was passed by both houses of Parliament on 5 December 2014 and received Royal Assent on 15 December 2014. The changes to sub-s.36(2)(a) were made by item 10 in pt.2 of sch.5 of the Amending Act. In combination with the insertion of definitions of “refugee” and related phrases, the effect of this was to bring the scope of protection obligation wholly within the Act rather than leaving that scope to be defined by international agreements such as the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.

8. These amendments commenced on the day fixed by Proclamation: namely, 18 April 2015.[1] The point to note, however, arises from the transitional provision in item 28 in pt.4 of sch.5 to the Amending Act which provides:

   The amendments made by Parts 2 and 3 of this Schedule apply in relation to an application for a protection visa that is made on or after the day this item commences.

   (Emphasis added)

   [1] See Amending Act, item 14 in the table to s.2.

9. The emphasised words mean that the operative date for the amendments to sub-ss.36(2)(a) and 36(2)(aa) in relation to applications for a protection visa is the date on which item 28 commenced. That date was 16 December 2014: Amending Act, items 3 and 22 in the table to s.2. That is the explanation of what Jagot J said at [37] in AZK15 v Minister for Immigration & Border Protection [2015] FCA 1444 (“AZK15”).

10. Returning to the present issues, the first relevant criterion for a protection visa, was that in sub-s.36(2)(a) which required that Australia had protection obligations to the visa applicant under the Refugee Convention 1951 as amended by the Refugees Protocol 1967. Article 1A(2) of the Convention originally described a refugee as a person who:

    As a result of events occurring before 1 January 1951 and owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

    (Emphasis added)

11. The emphasised parts of Article 1A(2) above were removed by the Protocol.

12. The criterion in sub-s.36(2)(aa) did not refer expressly to “country of nationality”, but rolled that concept up with that of a person without nationality. This was done by the phrase “receiving country”. The criterion was:

    …

    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    …

    (Emphasis added)

13. The term “receiving country” was defined in s.5 of the Act as follows:

    receiving country, in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national; or

    (b)if the non-citizen has no country of nationality—the country of which the non-citizen is an habitual resident;

    to be determined solely by reference to the law of the relevant country.

    (Emphasis in original)

14. As noted by Jagot J in AZK15, a key component of both criteria is the applicant’s country of nationality (if any). In its reasons, the Tribunal addressed this issue by reference to both the terms “country of reference” and “receiving country”. It is clear that those terms were used to differentiate between the two criteria because, while country of nationality is important to both, only sub-s.36(2)(aa) refers to “receiving country”.

15. For the purposes of considering the criterion in sub-s.36(2)(aa), the Tribunal was obliged to determine the question of nationality solely by reference to the law of the relevant country[2]. It did that by reference to the Sri Lankan Citizenship Act 1948. The reference to citizenship pursuant to that law was not misguided. While the Convention refers to “nationality”, that is often taken to be a reference to citizenship[3]. In any event, as Flick J noted in Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91 at [113]:

    [2] See also the former sub-s.36(6) of the Migration Act 1958 (Cth).

    [3] James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2^nd ed, 2014) 50 [4] and fn 182. See also Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees HCR/IP/4/Eng/REV.1 (January 1992) 87.

    …

    But the concept of “citizenship” itself is a “statutory notion”: Koroitamana v The Commonwealth of Australia [2006] HCA 28 at [55], 227 CLR 31 at 47 per Kirby J. “The term ‘citizenship’”, it has thus been said, “has a number of diverse meanings, and an exhaustive definition is difficult – maybe impossible – to formulate”: Hwang v Commonwealth of Australia [2005] HCA 66 at [12], 80 ALJR 125 at 129 per McHugh J.

16. Interesting and difficult questions arise in this context where, for example, a person comes from an area that is not readily identifiable as a country, or is not recognised as a citizen of a country, but otherwise has all the rights ordinarily associated with citizenship. However, those issues do not arise here. The Tribunal had a clear basis for determining that the applicant was eligible for citizenship and that, for that reason, his country of nationality was Sri Lanka.

17. The applicant’s attack on that finding is unsustainable not only because it was consistent with his own claims, but also because the attack is based solely on the assertion that it was wrong. That may or may not be right; however, what matters on judicial review is that the Tribunal properly understood the question posed by the Act and Regulations and made findings relevant to that question based on the material before it. The first ground is rejected.

Ground two

1. The second ground is that the Tribunal considered the wrong issue. The particulars to the ground are:

   (a)At [93] the Tribunal found that no recent information to suggest that scarring is still used as a basis for detaining and interrogating Tamils: and

   (b)Whether the country information is recent or not is the wrong issue. As the country information stands, scarring is still used as a basis for detaining and interrogating Tamils in Sri Lanka.

   …

2. The Tribunal accepted that the applicant had a number of characteristics: his father had some connection with the LTTE; he was young, Tamil and male whose family originated from the North and fled Sri Lanka during the conflict and remained outside of Sri Lanka; if he goes to Sri Lanka it will be on the basis that he unsuccessfully sought asylum in Australia; he also has some scarring on his face and arms.[4] The Tribunal then considered whether these attributes might provide the basis for persecution in Sri Lanka. In doing so, it stated, at [93]:

   [4] Tribunal’s decision at [92].

   …

   Whilst there is some country information indicating that scarring was used as a means of identifying former combatants in the immediate aftermath of the conflict, there is no recent information to suggest that scarring is still used as a basis for detaining and interrogating Tamils.

3. That is the passage impugned by the applicant in the second ground.

4. The difficulty with the ground is that it proceeds on the assumption that the Tribunal must accept evidence before it unless it has rebutting evidence. That assumption is wrong: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348;[1994] FCA 1105; CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [65]. The Tribunal is entitled to assess the evidence before it, give weight to it (including on the basis of whether or not it is recent) and then to make findings based on that assessment. That is what the Tribunal did in this case. It made no error in doing so and the second ground is rejected.

Conclusion

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

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

Date:     16 December 2016