ADF15 v Minister for Immigration
[2016] FCCA 3230
•14 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADF15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3230 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision not to grant a Protection (Class XA) visa – whether Tribunal seriously considered evidence provided by applicant after hearing – whether Tribunal fully considered claim against complementary protection criterion – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424AA |
| Applicant: | ADF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 584 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 7 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2016 |
REPRESENTATION
The applicant appeared in person assisted by an interpreter
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 584 of 2015
| ADF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Claims for protection
The applicant, a national of Sri Lanka, and a Tamil, stated his claims for protection in a statement that formed part of his application for a Protection visa. According to that statement, the applicant was a member of the UNP (United National Party), which was an opposition party in Sri Lanka. The applicant joined the UNP in around June 2009. He joined because there are other members of the UNP who resided in the applicant’s village.
There lived near the applicant’s village a Minister of the current provincial council who was a member of SLFP (Sri Lanka Freedom Party). In or around January 2010, during the election period, the Minister sent a group to the applicant’s house. The group told the applicant’s mother that if the applicant was getting involved with the UNP, the applicant would not be allowed to live. The group also told the applicant’s mother that she should not let the applicant work for the UNP. At that time, the applicant was with his wife’s family in Mundal. The applicant was scared to live in his house, so he remained for some time at his mother-in-law’s house.
In around March 2011 the applicant worked for the UNP in the provincial council elections in and around the area near his home. After the election, in which the UNP was defeated, the applicant returned to live with his mother-in-law for a period of time. In around 2012, the applicant was afraid to continue to live in his village, or at his mother-in-law’s house. He therefore left Sri Lanka for Australia because he feared for his life “due to the fact that the government had threatened to kill” the applicant.
The applicant submitted four typed letters in support of his claims.
a)One was a letter dated 13 February 2013 from a person who purportedly is the “Ex-Member of Pradeshiya Sabawa & (Organizer of United National Party – Karukupone Area)”.[1] The letter stated the applicant is “an ardent supporter” of the UNP, and that he “actively participated all [sic] campaigns of the party and took forefront part [sic] in election campaigns of the party”. The letter also stated that after the “loss of the party on the election” the applicant “faced persecution from the ruling party members and lived in several hiding places and ultimately left to Australia to seek asylum therein to protect his life”.
b)A second letter is purportedly from a Member of Parliament stating that the applicant is a member of the UNP and that for “the last four years worked in the elections for the said UNP and this has caused the opposite party group to take vengeance against him”.[2]
c)A third letter is purportedly from the chief priest of a Hindu temple stating the applicant was known to the author, that the applicant is a member of the village development society but “[u]nfortunately he couldnot [sic] continue his activities in our village due to rebells [sic] (unknown persons) threats and political problems”.[3]
d)The fourth letter purportedly is from an “attorney at law”.[4] The letter stated the applicant was a “member and ardent supporter” of the UNP in which he was “actively engaged in organizing meetings, election campaigns and canvassing for the party”. The letter further stated that the applicant’s “allegiance and loyalty” to the UNP earned him enemies especially from the ruling party, and that “[h]e was set upon by thugs and goons belonging to the ruling party who brutally assaulted him and caused him bodily harm”.
[1] CB98
[2] CB97
[3] CB94
[4] CB96
Before the Tribunal, the applicant confirmed he started his political activity in Sri Lanka in June 2009 by joining the UNP.[5] He said he attended meetings during the election and put up posters.[6] The applicant’s problems started in 2010. On the day of the 2010 elections the applicant stood on the road in his village and told people to vote for the UNP representative.[7] The next day, the applicant heard from his friends that “SLFP thugs” would be going to his house, so he hid in farmland near his village.[8] About three days after the 2010 Parliamentary election, people told the applicant’s mother that the applicant should not be involved in the elections anymore, and if they found out he was doing things in the future they would kill him. The SLFP Minister was part of the group that made the threat. The applicant then moved to Mundel.[9]
[5] CB160, [23.i]
[6] CB160, [23.j]
[7] CB160, [23.m]
[8] CB160, [23.m]
[9] CB160, [23.n]
Before the Tribunal, the applicant also said that in 2011 he worked for the UNP in his village and nearby villages during the elections. He put up posters, distributed handbills to people in their homes, and he attended meetings. The applicant stayed at the home of a UNP provincial member of parliament, and he did so because he was scared of the SLFP Minister.[10]
[10] CB160, [23.p]
The applicant claimed he feared that if he returned to Sri Lanka, the opposition might put charges on him linking him with the Liberation Tigers of Tamil Eelam (LTTE);[11] the applicant cannot stay in his village and not be politically active;[12] he cannot continue to live in Mundel because it is not his home;[13] he fears returning to Sri Lanka because he is a Tamil, and the majority of the villagers in his village are Sinhalese;[14] and the applicant feared harm because he left Sri Lanka illegally.[15]
[11] CB160, [23.u]
[12] CB160, [23.v]
[13] CB160, [23.w]
[14] CB160, [23.x]
[15] CB160, [23.bb]
Tribunal’s reasons
The Tribunal understood the applicant claimed he feared harm if he returns to Sri Lanka for three reasons: his political support and activity for the UNP, his Tamil ethnicity, and his illegal departure from Sri Lanka.[16]
[16] CB164, [30]
Threat from ruling party
The Tribunal found the applicant was a member of the UNP from June 2009, and that he helped in the election campaign for the 2010 Parliamentary election by putting up posters and encouraging people to vote for the UNP.[17] The Tribunal did not accept the applicant’s evidence about his political activity in the 2011 elections. First, country information showed that although elections were held in 2011, they were for local government, not for provincial councils.[18] Second, the applicant’s evidence before the delegate was inconsistent with the evidence before the Tribunal.[19] Before the delegate, the applicant said he went home to vote in the 2011 election and then returned to Mundel the next day, whereas before the Tribunal, as I have already noted, the applicant said that in 2011 he worked for the UNP in his village and nearby villages during the elections putting up posters, distributing handbills to people in their homes, and attended meetings. The Tribunal, therefore, did not accept the applicant was politically active for the UNP during a 2011 election.[20] The Tribunal, however, did accept the applicant did have occasional low level activity for the UNP between June 2009 and April 2010.[21]
[17] CB165, [31]
[18] CB165, [32]
[19] CB165, [33]
[20] CB165, [34]
[21] CB166, [36]
The Tribunal did not find credible the applicant’s claim about the threat made against him following the 2010 Parliamentary election because the Tribunal found the applicant’s evidence to be inconsistent and, in some aspects, implausible.[22] The Tribunal referred to the applicant’s evidence at the hearing before it that he hid in farmland near his village after he heard from his friends that “SLFP thugs” would be going to his house, whereas in his statement the applicant said he was at his mother-in-law’s house in Mundel at the time SLFP people went to his home.[23] The Tribunal also found it implausible that the SLFP politician and thugs would go to the applicant’s house and threaten him after the SLFP had won the election, as the applicant was one of the low level supports of the UNP.[24] The Tribunal also noted that the letters the applicant submitted to the Tribunal were “very inconsistent with the applicant’s evidence”.[25] The Tribunal referred to, among other things, the letters stating that the applicant “lived in several hiding places”, and that the applicant “was set upon by thugs and goons”.[26] The Tribunal, therefore, did not accept that the threats were made against the applicant by ruling party politicians, members, supporters, or thugs in 2010 or at any other time.[27]
[22] CB166, [37]
[23] CB166, [37]
[24] CB166, [38]
[25] CB166, [39]
[26] CB166, [39]
[27] CB167, [40]
Finally, the Tribunal referred to country information that shows that in January 2015 the UNP was elected into power, and that this would shift the political balance so that any threat from SLFP members and politicians because of their success would dissipate.[28] The Tribunal noted country reports of a UNP supporter being killed in Bangadeniya shortly after the Presidential election. The Tribunal did not consider that this, or similar incidents, would give rise to a well-founded fear of harm to the applicant.[29]
[28] CB167, [41]
[29] CB167, [42]
Tamil ethnicity
The Tribunal was not satisfied there is a real risk or chance of the applicant facing serious or significant harm in Sri Lanka because of his Tamil ethnicity.[30] The Tribunal relied on country information, and in particular on a 2015 report prepared by the Department of Foreign Affairs and Trade which, in turn, referred to the eligibility guidelines issued by the United Nations’ High Commissioner for Refugees that due to the improved human rights and security situation there was “no longer a need for group protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country”.[31] The Tribunal noted the applicant comes from the North West Province, a Sinhalese majority area, which is not considered by the Sri Lankan authorities to be an area of high security concern such as the north or east of Sri Lanka.
[30] CB170, [52]
[31] CB168, [44]
The Tribunal referred to the applicant’s claims that Tamils are not preferred in job opportunities, that in 2007 local SLFP politicians made the people in the village, including Tamils, attend political meetings for one year, and that, at checkpoints, Tamils are checked and teased about being LTTE members. The Tribunal noted the applicant has been able to obtain employment most of his adult life in both Sri Lanka and Dubai and that, although the applicant was not given employment as a bus conductor in 2000, there was insufficient evidence whether that occurred because the applicant was a Tamil.[32] The Tribunal was not satisfied there was a real risk that what occurred in 2007 would again occur, given the time that has passed.[33]
[32] CB169, [48]
[33] CB169, [50]
Finally, the Tribunal noted the applicant did not claim any mistreatment, or actual threat of mistreatment, from Sri Lankan authorities because he is a Tamil.
Illegal departure
The Tribunal accepted the applicant left Sri Lanka illegally, that he will be charged with an offence under the Immigrants and Emigrants Act (IE Act) if he returns, that he will face a fine of between 5,000 to 100,000 rupees, and that he may be held up for a few days on remand before being given bail. The Tribunal also accepted that conditions in Sri Lankan prisons are substandard, crowded, and uncomfortable, although it noted there was no evidence of deliberate or intentional mistreatment of returnees who are on remand for illegal departure.[34] The Tribunal found the evidence before it did not indicate the provisions of the IE Act are discriminatory on their face or disclose discriminatory intent; and it was satisfied Sri Lanka’s departure laws are applied regardless of ethnicity and political affiliation to all persons who are returnees. The only differentiation made in the application of the laws is to deal more harshly with those suspected of facilitating people smuggling. The Tribunal found there was no evidence to indicate the applicant would be suspected of facilitating people-smuggling. The Tribunal, therefore, was not satisfied there is a real risk the applicant will be subjected to significant harm in Sri Lanka because he departed Sri Lanka unlawfully.
[34] CB170, [57]
Grounds of application
The application contains the following three grounds of review:
1.The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.
2.The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424AA.
3.I intend to provide Transcript of the Respondent’s hearing to this Court.
These paragraphs were interpreted to the applicant, who is not legally represented. The applicant made no submission in relation to ground 2, and he confirmed he had not obtained a transcript of the hearing before the Tribunal. The applicant, however, did make a submission in relation to ground 1. He said he had submitted a letter to the Tribunal after the hearing, but the Tribunal did not take it very seriously. I will first deal with this submission.
The “letter” to which the applicant referred is the document at page 150 of the Court Book. It is a translation of newspaper article the applicant’s agent had sent to the Tribunal by email on 27 January 2015.[35] The article refers to a clash at a village in which a person was murdered, and three people suffered serious injuries. The Tribunal referred to that article in paragraph 24 of its reasons, where it summarised the contents of the article. The Tribunal again refers to the article at paragraph 42 of its reasons for decision where it concluded it did not consider that the incident, or any similar incident, gave rise to a well-founded fear of persecution, or would give rise to a well-founded fear of harm to the applicant on his return to Sri Lanka. The Tribunal noted it accepted the applicant was a UNP supporter, but it was not satisfied there was any evidence the applicant involves himself in clashes or fights between rival political party supporters. The Tribunal also concluded there was no reason the applicant would find himself in a situation in which he would be at risk of such harm from opposing party supporters.
[35] CB149
In my opinion, therefore, the Tribunal did consider the article seriously but, for reasons on which it was reasonable for it to rely, the Tribunal made the findings to which I refer in the previous paragraphs.
As for the first of the grounds stated in the application, the Tribunal did consider whether the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). In paragraph 72 of its reasons the Tribunal says, having concluded the applicant did not satisfy s.36(2)(a) of the Act, it considered the alternative criterion provided for by s.36(2)(aa) of the Act, but concluded the applicant was not a person in respect of whom Australia owed protection obligations under s.36(2)(aa). This conclusion was reasonably open to the Tribunal given the findings it had earlier made in its reasons and on which, on a fair reading of the Tribunal’s reasons, the Tribunal relied. Further, there does not appear to be any aspect of the claim that was relevant only to the criterion provided for in s.36(2)(aa) of the Act that was not also relevant to the criterions provided for by s.36(2)(a) of the Act which the Tribunal did not consider.
Ground 1, therefore, fails.
Ground 2 is an unparticularised claim the Tribunal failed to comply with (in effect) s.424AA of the Act. That ground discloses no jurisdictional error. Ground 2, therefore, fails.
Conclusion and disposition
The applicant has not succeeded in showing the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 14 December 2016
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