ACM15 v Minister for Immigration and Anor

[2018] FCCA 1194

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACM15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1194

Catchwords:
MIGRATION – Protection (class XA) visa – Sri Lankan shop keeper – unauthorized maritime arrival – applicant asserting that if returned to Sri Lanka he would be unable to stand by and watch police doing their work – no details – no merit.

Cases cited:

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292

WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399

Applicant: ACM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 423 of 2015

Judgment of: His Honour Judge Wilson

Hearing date: 20 February 2018

Date of Last Submission: 20 February 2018

Delivered at: Melbourne

Delivered on: 14 May 2018

REPRESENTATION

Counsel for the Applicant: Mr T. Farhall

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondents: Mr B.Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The proceeding commenced by the application filed 5 March 2015 and amended on 22 August 2017 is dismissed.

2. The applicant pay the minister’s costs fixed in the amount of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 423 of 2015

ACM15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Having abandoned grounds two and three on 20 February 2018, the only ground pressed in this application for judicial review was ground one. On three particularised bases, the applicant asserted that the Refugee Review Tribunal, now the Administrative Appeals Tribunal, in its decision of 11 February 2015 failed to take into account relevant considerations or that the tribunal applied the wrong legal test. 

2. The applicant relied on ground one of his amended application filed with leave granted on 22 August 2017. The precise terms of the only ground pressed were as follows –

   “1. In assessing the Applicant’s future risk of serious or significant harm for the reasons of his imputed political opinion, the Second Respondent failed to take into account relevant considerations or applied the wrong legal test.

   a. The Second Respondent accepted at paragraph [69] that the Applicant had made complaints about police in the past, and noted at paragraphs [54] and [74] that the Applicant stated he would continue to do so in the future.

   b. The Second Respondent did not make a finding as to whether the Applicant would face harm if he continued to make complaints about police in the future.

   c. In concluding that there is not a real chance that the Applicant would suffer serious or significant harm in Sri Lanka now or in the reasonably foreseeable future for reasons of his imputed political opinion, the Second Respondent considered only past events and behaviours and failed to consider that the Applicant, if returned to Sri Lanka, would continue to make complaints regarding police behaviour.”[1]

   [1] Applicant’s amended application filed 22 August 2017 at ‘grounds for application’..

3. In submissions advanced meticulously and efficiently by Mr Farhall of counsel for the applicant, he contended, in essence, that the applicant made a particular claim that the tribunal recorded in paragraph 69 of its reasons as being a valid claim yet the tribunal did not address that claim. He said that the tribunal thereby fell into jurisdictional error. 

4. Expressed in those terms, Mr Farhall’s submissions breathed life into the possibility of a point going to the proper discharge of the tribunal’s statutory function when considering and determining claims raised by an applicant.

5. Mr Farhall put the point thus –

   “So the claim in issue in this appeal is related to the applicant’s future complaints about the behaviour of authorities and there’s no question that the tribunal dealt with the applicant’s claims of past complaints to the authorities and those essentially related to two matters. The first was to do with complaints made by the applicant and other shopkeepers about army and police personnel taking goods from the shop and not paying for it. The tribunal accepted that the applicant owned a shop. The tribunal accepted that, from time to time, army personnel would take goods from the shop without paying for them. The tribunal accepted that the applicant, along with other shopkeepers, went to the police to complain about this behaviour and the tribunal found that, after that approach, the issues stopped, at least for a couple of months.”[2]

   [2] Transcript of proceedings, ACM15 v Minister for Immigration and Border Protection & Anor (Federal Circuit Court of Australia, MLG423/2015, his Honour Judge Wilson, 20 February 2018), pg 3, line 35-45.

6. The issue for me on this judicial review application was whether the tribunal failed to address the applicant’s claims as articulated above. 

Synopsis

1. For the reasons that follow, in my judgment the tribunal did in fact address the claims made by the applicant. It follows that there was no jurisdictional error by the tribunal. This application for judicial review failed. I dismiss this proceeding and order the applicant to pay the minister’s costs.

An historical examination of the facts

1. The applicant, a Sri Lankan citizen of Tamil ethnicity and Hindu religion from Batticaloa in the eastern province of Sri Lanka, applied for a protection (class XA) visa on 8 November 2012. The minister’s delegate decided not to grant the visa. Being dissatisfied with that decision, the applicant sought a merits review in the tribunal.  

2. The nature of ground one in its amended form was very particular. It focused on three paragraphs of the tribunal’s reasons, namely paragraphs 54, 69 and 74.  It is useful to set out those paragraphs in precise terms before turning to the ground in support of this application for judicial review.

3. Paragraph 54 of the tribunal’s reasons was as follows –

   “The applicant said that if he went back to Sri Lanka he could not stand by and watch the police behave as they do. He said the Government and the Army and the police would find out and he would have no protection.”[3]

   [3] Court book filed 26 February 2016, pg 350.

4. Paragraph 69 of the tribunal’s reasons was as follows –

   “I accept that the applicant owned a shop in his village. I accept that from time to time Army personnel would come to his shop and the shops owned by others and take goods without paying. I accept that the shopkeepers involved, including the applicant, approached the local police. I accept that following that approach the problem stopped for a few months.”[4]

   [4] Court book, filed 26 February 2016, pg 350.

5. Paragraph 74 was the same as paragraph 54. For some unexplained reason, the tribunal repeated itself in those two paragraphs.

6. In essence, the applicant contended that the tribunal dealt with specific past incidents yet the tribunal did not consider the risk of harm to the applicant by reason of imputed political opinion if the applicant took further action against the police or army upon his return to Sri Lanka. The applicant asserted that in carrying out its statutory task the tribunal was required to consider not only past or present circumstances but also “what was likely to happen in the reasonably foreseeable future”[5] in the words of Mr Farhall. In support of the quoted portion, Mr Farhall called in aid the decision of Flick J in SZQXE v Minister for Immigration and Citizenship[6] where his Honour in turn applied the observations of the majority of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo Wei Rong[7] and the observations of the Full Court of the Federal Court of Australia in WAAD v Minister for Immigration and Multicultural Affairs[8]. In WAAD v Minister for Immigration and Multicultural Affairs, the court held that a finding of past persecution may render a finding of present or future persecution more likely. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong the point was expressed in the following

   
   

   terms –

   “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...”[9]

   [5] Transcript of proceedings, above n 2, pg 5, line 30.

   [6] SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292.

   [7] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 575.

   [8] WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399.

   [9] SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292, paragraph 8 citing Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559.

7. While the narrow point in issue in this case in relation to the only ground pressed was neat, the factual background against which it was set was broad, as is recorded below.

8. The applicant arrived in Australia on Christmas Island on 16 July 2012 as an unauthorised maritime arrival. To his visa application he attached a statutory declaration made 26 October 2012 in which he set out his claims to fearing harm from Sri Lankan authorities by reason of his Tamil ethnicity. The applicant pointed to the following specific

   
   

   events –

   “(a) He [said he] lost his sister in 1997 because of hostilities in Sri Lanka[, that] he did not know if she was killed from a shelling or whether someone had murdered her;

   (b) three to four months before he left Sri Lanka, he [said he] was operating a grocery shop when the Sri Lankan Army and police came to his shop and took various things [after which he said he] made a complaint to the police;

   (c)…An incident… occurred outside his shop [involving] a man and his child [who] were stopped by traffic police and asked to pay 1000 rupees [following which] [t]he [a]pplicant confronted the traffic policeman who told him to mind his own business[, he]… felt he had no choice but to pay the money;

   (d) in May 2012, four men in a white van pulled up next to him and questioned him about why he was making complaints to the police;

   (e)since leaving Sri Lanka, four or five men have come into his shop looking for him [in response to which the applicant’s] wife informed them that the … [a]pplicant had gone out but the [a]pplicant suspect[ed] that they [knew] he ha[d] fled the country;

   (f)he fears that if returned to Sri Lanka he will suffer arbitrary arrest and detention, imprisonment, physical assault and torture, possibly death at the hands of the Sri Lankan authorities because of his ethnicity as a Tamil and because he has sought asylum in a Western country.”[10]

   [10] First respondent’s outline of submissions, filed 18 April 2017, at pg 5(a) citing court book above n 4, p 65-68.

9. During an interview with the delegate held on 26 March 2013, the applicant clarified the date of his sister’s death as being June 2002. 

10. The applicant’s protection visa application was refused by the delegate on 1 August 2013.  

The merits review application to the tribunal

1. The applicant applied to the tribunal for merits review on 7 August 2013. On 11 November 2014 the tribunal invited the applicant to provide written submissions by 7 January 2015 and to appear before it on 14 January 2015. By letter dated 12 January 2015 the solicitors then representing the applicant provided a 14 page detailed submission of fact and law together with a 74 page appendix, the three paragraph conclusion of which read as follows –

   “Based upon the information provided above, it is our submission that:

   a. the present government of Sri Lanka has persecuted those who it perceives to oppose its rule and policies;

   b. such persecution has occurred throughout Sri Lanka;

   c. based upon current trends, such persecution is not likely to cease within the reasonably foreseeable future, and may indeed (based upon the government’s current authoritarian trend) worsen considerably.”[11]

   [11] Court Book, above n 4, p 278.

2. It must fairly be said that those written submissions were comprehensive. The minister’s counsel synthesised the contents of those submissions into five propositions that in my view did not present the submissions as fairly as may have been done. The minister said it in his detailed written submissions that the applicant claimed –

   “(a) he would suffer persecution in Sri Lanka on the basis of his Tamil race, his Hindu faith, his imputed political opinion of opposition to the government of Sri Lanka, and his membership of a particular social group (failed asylum seekers returning to Sri Lanka);

   (b) he would be perceived to be opposed to the government of Sri Lanka because he was a Tamil, had been a member of a Hindu volunteer group which had protested against encroachments upon temple land by the authorities, had complained to authorities about the taking of goods from his store and the harassment of an acquaintance by state officials, and has applied for protection in Australia;

   (c) his sister died in 1999 at the hands of the Sri Lankan security forces;

   (d) his sister’s death was preceded by the death of his brother-in-law, who died in mysterious circumstances in 1998; and

   (e) he was unable to investigate the deaths of his sister and brother-in-law because he feared he would be perceived to be imputed with an anti-Sri Lankan government political view if he did so.”[12]

   [12] First respondent’s outline of submissions, above n 10, p 4, pg 11.

3. The applicant appeared before the tribunal on 14 January 2015 represented by his solicitor.  In attendance was an interpreter.  The hearing commenced in real terms at 10:57am and was completed at 2:05pm. 

4. In response to the tribunal’s invitation, on 3 February 2015 the applicant’s solicitors provided further very detailed and lengthy written submissions to which was attached several appendices on fact, law and country information.  

5. An extremely large amount of information was contained in those submissions calling for very many hours of detailed consideration. 

6. On 11 February 2015 the tribunal decided upon the merits review adversely to the applicant.

The tribunal’s reasons

1. The tribunal arranged its reasons into discrete parts. The reasons themselves, numbering 162 paragraphs over 22 pages, represented the decision, despite the attachments.  To the reasons the tribunal attached attachment A entitled “relevant law”, attachment B entitled “country information”, attachment C entitled “summary of the hearing” (not a verbatim record) held on 14 January 2015. I was unable to follow why the tribunal attached the “summary of hearing” document to its reasons as the summary was not a proper transcript and whatever notes the tribunal member took that went towards the formulation of the tribunal’s reasons merged in the reasons themselves. In any event, only the tribunal’s reasons will be relevant in any assessment of jurisdictional error, meaning that the relevant document in this case was the 162 numbered paragraph statement of reasons. 

2. The tribunal arranged its reasons in a way that for the purposes of ground one of the amended application, the tribunal posed several questions, each as a separate heading in lower case text under the broader heading (in capitals and bold) “claims”. It is useful to record each separate lowercase heading. Importantly for present purposes, the tribunal made specific reference to whether the applicant would suffer harm in the reasonably foreseeable future (emphasis added). That was important because the applicant complained that the tribunal considered only past events and failed to consider what might happen in the future. Each separate question was as follows –

   a)immediately above paragraph 34, the question was –

   “Is there a real chance that the applicant would suffer harm in Sri Lanka now or in the reasonably foreseeable future for reason of race as a Tamil and is his fear of pre-persecution well founded?”;[13]

   [13] Court Book, above n 4 p 347.

   b)immediately above paragraph 46, the question was –

   “Is there a real chance that the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future for reason of real or imputed political opinion as a supporter/sympathiser of the LTTE and is his fear of persecution well founded?”;[14]

   [14] Court Book, above n 4 p 349.

   c)immediately above paragraph 53, the question was –

   “Is there a real chance that the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future because of his imputed political opinion because he complained about army and police men taking goods from his shop?”;[15]

   [15] Court Book, above n 4 p 350.

   d)immediately above paragraph 73, the question was –

   “Is a real chance of the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future because of his imputed political opinion because he complained about a policeman fining a man on a motorbike?”;[16]

   [16] Court Book, above n 4 p 352.

   e)immediately above paragraph 85, the question was –

   “Is there a real chance that the applicant would suffer serious harm in Sri Lanka now or in the immediately foreseeable future because of his religion as a Hindu”;[17]

   [17] Court Book, above n 4 p 354.

   f)immediately above paragraph 102, the question was –

   “Is the death of the applicant’s sister in the late 1990s relevant to the applicant’s claims about his imputed political opinions?”;[18]

   g)immediately above paragraph 107, the question was –

   “Taken cumulatively, is there a real chance of the applicant will suffer serious harm for his imputed political opinions?”;[19]

   h)immediately above paragraph 112, the question was –

   “Is there a real chance of the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future for reason of his membership of the particular social club “wealthy Tamils living in the East” or any similar formulation?”;[20]

   i)immediately above paragraph 125, the question was –

   “Is a real chance that the applicant would suffer serious harm in Sri Lanka now or in the reasonable foreseeable future for reason of his membership of the particular social group “Tamils from Eastern Sri Lanka” or “Tamil men from Batticaloa” or any similar formulation?”;[21] and lastly

   j)immediately above paragraph 132, the question was –

   “Is a real chance that the applicant would suffer serious harm in Sri Lanka now or in the resolution of civil future for reason of his membership of the particular social group “returned failed asylum seekers” or “returned Tamil failed asylum seekers” or any similar formulation and is his fear of persecution well founded?”.[22]

   [18] Court Book, above n 4 p 356.

   [19] Ibid.

   [20] Court Book, above n 4 pg 357.

   [21] Court Book, above n 4 p 359.

   [22] Court Book, above n 4 p 360.

3. The tribunal further arranged its reasons in this case in such a way that after posing the questions for its consideration in the manner described in the paragraph immediately above, the tribunal addressed each question over several paragraphs that immediately followed then it expressed a finding in response to each discrete question posed. The responses to the discrete questions were in paragraphs 45, 52, 72, 84, 101, 106, 111, 124, 131 and 147.

4. Next, it became necessary to work through the particulars of the single ground of application that was pressed. Three particulars were advanced.

1. In particular 1(a), the applicant asserted that the tribunal accepted at paragraph 69 of its reasons that the applicant had made complaints about police in the past. That particular was not accurate. Paragraph 69 of the tribunal’s reasons did not say that the tribunal accepted that the applicant had made complaints about the police in the past. The word “complaint” was not even mentioned in paragraph 69. That paragraph read as follows –

   “I accept that the applicant owned a shop in his village. I accept that from time to time Army personnel would come to his shop and the shops owned by others and take goods without paying. I accept that the shopkeepers involved, including the applicant, approached the local police. I accept that following the approach the problem stopped for a few months.”[23]

   [23] Court Book, above n 4 p 352.

2. But paragraph 70 of the tribunal’s reasons contained a reference to complaints to the police. So did paragraph 72. They were as follows –

   I accept that the applicant, together with other shopkeepers, had also complained to their Member of Parliament. I accept that nothing adverse happened to the applicant because of his part in the joint approach to the police and to the Member of Parliament before the applicant left Sri Lanka. I accept that the other shopkeepers did not suffer any harm as a result of the joint complaint they made to police.

   …

   I find that there is not a real chance that the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future because of his imputed policital opinion because he complained about Army and Police men taking goods from his shop, and I find that his fear is not well founded.”[24]

   [24] Ibid.

3. When particular 1(a) was read as a reference, not to paragraph 69 of the tribunal’s reasons but rather to paragraphs 70 and 72 of the tribunal’s reasons, then it was correct for the applicant to assert that in those two paragraphs the tribunal accepted that the applicant was among a number of persons who jointly complained to police. Those complaints were, naturally enough made previously and, inferentially, they concerned past activities that were the subject of the complaints. That much seemed to be a proper and legitimate construction of paragraphs 70 and 72 of the tribunal’s reasons.

4. The applicant then pointed to two paragraphs in the tribunal’s reasons, identically worded as it happened, namely paragraphs 54 and 74. In those two places the tribunal stated as follows –

   “The applicant said if he went back to Sri Lanka he could not stand by and watch the police behave as they do. He said the Government and the Army and the Police would find out and he would have no protection.”[25]

   [25] Court Book, above n 4, pp 350, 353.

5. The applicant asserted in particular 1(a) that the wording of paragraph 54 (as repeated in paragraph 74) was to be construed in such a way as to mean that the applicant, having previously complained to the police, had stated he would continue to do so in the future.

6. I did not read paragraph 54 in that way. That paragraph of the tribunal’s reasons was no more than the applicant’s statement that if he went back to Sri Lanka he could not stand by and watch the police behave as they do. It does not follow that the applicant’s next act was to make a complaint to the police nor did it follow that the applicant’s inability to stand by necessarily meant that the applicant thereby became the object of police displeasure leading to the applicant being placed in jeopardy by reason of the absence of protection given to him.

7. The applicant’s logic in advancing that contention was unsound. I say that for several reasons. First, the mere fact that the applicant had previously complained to police in the past was no necessary guide that the applicant would do so in the future. Next, the mere fact that the applicant had previously complained to the police in the past was no indication that the applicant would become a person of interest to the police thereafter. Next, as mentioned above, the applicant’s professed inability to stand by and watch the police behave as they do did not thereby convert the applicant to a person of relevance to Sri Lankan authorities – police or otherwise. It seemed to me to be significant that the applicant did not descend to any detail about how or in what circumstances his inability to stand by and watch would or might have subsequently manifested itself. Further, the applicant did not say whether his subsequent behaviour, whatever it may have been or whenever it may have occurred, could have given rise to the police finding out (of what, he did not say) leading to the applicant having no protection.

8. It seemed to me that the applicant’s argument was predicated on a large number of issues that may never have come to pass. But equally importantly, the applicant did not say how or why he could not stand by and watch police behave as they do. He did not differentiate between legitimately lawful acts carried out by police on the one hand and conduct of dubious legality on the part of the police that he said he could not stand by and watch on the other hand. Nor did he say why he could not stand by and watch. Did he suffer from some psychiatric condition rendering him powerless from exhibiting lawful and publicly virtuous behaviour in the presence of police? He did not say why he could not behave properly in the presence of police. In one sense, the applicant invited me to sanction, under the guise of a protection visa, possibly illegal and certainly disruptive behaviour by an applicant who glibly asserted to this court that he lacked sufficient self-control and he thereby became disabled from behaving properly in the presence of police. I found this version of his claim on this issue to be highly peculiar.

9. I do not agree with the proposition asserted in particular 1(c). The applicant’s assertion that he could not stop continuing to make police complaints represented a degree of activism the curtailing of which was wholly within his control. In circumstances where protection claims are commonly associated with events beyond the control of the relevant applicant, as opposed to those within the control of the relevant applicant, this claim appeared to me to be one that the tribunal was entitled to reject, just as it did. I detected no error in the tribunal finding as it did. 

10. In the minister’s further outline of submissions filed 6 February 2018 counsel for the minister took issue with the applicant’s want of precision in the identification of the matters that might require the applicant to take action against the police. I agree. In paragraph 7 of the supplementary submissions, counsel for the minister wrote the following –

    “Moreover, contrary to what is said in the Amended Application, the Applicant did not claim at any time that he would continue to make complaints about police in the future. Rather, to the extent the Applicant referred to how he may behave in the future, his ‘claim’, as recorded at [74] of the Tribunal’s reasons, was that, “if he went back to Sri Lanka he could not stand by and watch the police behave as they do…” It is far from clear what the Applicant meant when he said he would be unable to ‘stand by and watch’, nor is it clear what the Applicant meant when he referred to the police behaving ‘as they do’.”[26]

    [26] First respondent’s further outline of submissions, filed 6 February 2018, p 2, pg 7.

11. The applicant’s position on this ground was most peculiar. In essence, he said he sought the protection from Australia because if he were to be returned to Sri Lanka he could not control himself and he would end up complaining about police behaving as they did and that thereafter he would not be safe. He did not run that case before the tribunal. The minister put the point properly at paragraph 11 of his submissions in the following terms –

    “Notwithstanding the lack of clarity in the alleged claim, the Tribunal in any event addressed the prospect of the Applicant being harmed in the future for reasons of his imputed political opinion. At [107] of its reasons, the Tribunal notes the Applicant’s submission that he is “an activist for and from the Hindu Tamil community, [who] would face particular risks.” At [108]-[111], the Tribunal then found that the Applicant would not face persecution in the future on account of his political opinion, having regard to the fact he had not been harmed in the past for such reasons.”[27]

    [27] First respondent’s further outline of submissions, above n 26, p 3, pg 11.

12. In my view, ground 1 was devoid of merit. I dismiss this application and order the applicant to pay the minister’s costs. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson

Associate: 

Date:       14 May 2018