ADN15 v Minister for Immigration
[2015] FCCA 3488
•24 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADN15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3488 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal made incorrect findings of fact, failed to consider all the evidence and made an unreasonable decision. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.36, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | ADN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 77 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 24 September 2015 |
| Date of Last Submission: | 24 September 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 24 September 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms V. Greenslade of Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s cost fixed in the sum of $6,825.00.
The Administrative Appeals Tribunal replace the Refugee Review Tribunal as the second respondent in the proceedings.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 77 of 2015
| ADN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 1 August 2012. On 11 December 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity and perceptions of his political opinion. On 16 October 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), the predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa. As summarised by the Tribunal, the applicant relevantly made the following claims:
a)he is a Tamil and was born in the North Western Province of Sri Lanka;
b)between 2005 and December 2008 his brother was forced to work for the Sea Tigers, the naval wing of the Liberation Tigers of Tamil Eelam (“LTTE”), as a general packet radio service (“GPRS”) operator in relation to missiles and other weaponry. His brother escaped the LTTE in December 2008 and returned home;
c)after his return, his brother was questioned for some hours by the local police and told them about his work with the Sea Tigers. The local police told his brother to stay at home and a Criminal Intelligence Division (“CID”) officer was appointed to monitor him. The CID officer generally visited their home every second day;
d)in January 2009 the Sri Lankan president visited their home area and his brother and others were arrested on suspicion of being LTTE members. His brother was detained for three months under a preventative order;
e)after his brother’s release, they went into business together buying and selling dried fish. His brother had travelled to the north of the country for their business and had required permission from the authorities to do so. The applicant later said his brother had not required permission to travel;
f)in February 2010 his brother went missing. Sometime after that, his uncle was detained in the northern province and saw his brother, who said that someone had told the navy about his role. His uncle telephoned his family to tell them this and one month later the navy CID started visiting his family;
g)the CID had taken and interrogated him on his brother’s whereabouts about fifteen or sixteen times. During those interrogations, a pistol was put to his temple and he was punched in the face. After each interrogation he was driven somewhere unknown in a white van and thrown out of the van. On the last occasion he was interrogated his passport was confiscated; and
h)on 28 November 2012 two men from the CID in white vans attended his family home asking after his whereabouts. His mother told them he had left Sri Lanka.
In a submission to the Tribunal dated 9 February 2015, the applicant’s representatives submitted that the applicant feared harm in Sri Lanka because of his Tamil ethnicity, his membership of the particular social group of failed asylum seekers returning to Sri Lanka and his imputed political opinion of having links with the LTTE.
The Tribunal’s decision and reasons
The Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant’s brother had been forced to work with the LTTE between 2005 and 2009 or that he had been trained as a GPRS operator. In that connection it found that:
i)given that the Sea Tigers had been a critical component of the LTTE, if the applicant’s brother had been involved with them and had disclosed that involvement to the police, it was not credible that the police would have released him after only a few hours of questioning, particularly as it was some months before the end of the civil war. The Tribunal also did not consider it credible that the applicant’s brother would have been released in April 2009, again prior to the end of the civil war, and not be required to seek permission to travel out of his home area;
ii)a court order dated 17 April 2009 in relation to the applicant’s brother’s release from detention which stated that there was “no necessity for any further inquiry about him” indicated that the applicant’s brother had not been of continuing adverse interest to the authorities as an LTTE Sea Tiger;
iii)the applicant’s claim that his brother had not been placed in a rehabilitation camp was contrary to country information indicating that a large number of LTTE members had been arrested and detained following their surrender or capture at the end of the civil war and prosecuted or sent to government run rehabilitation centres;
iv)the applicant had given inconsistent evidence about significant matters. The Tribunal noted that the applicant had said that after his brother was released from detention in April 2009 he was required to obtain permission to leave their home area but, when queried, he then said his brother had not had to obtain permission. The applicant also initially said his brother had told the authorities about his work for the Sea Tigers before later saying that he had not done so; and
v)having found that the applicant’s brother had not worked for the LTTE, the Tribunal did not accept that he had disappeared, that the applicant and his family had been questioned about his brother’s whereabouts, that the applicant had been taken and interrogated by the CID as he alleged or that since the applicant had left Sri Lanka the authorities had questioned his family about his and his brother’s whereabouts;
b)the Tribunal found that the chance that the applicant would be imputed with a pro-LTTE opinion or targeted by the authorities or anyone else because of his brother was remote. In that regard, while the Tribunal accepted that the applicant’s brother had been detained for three months in 2010 as a preventative measure during the president’s visit and on suspicion of involvement with the LTTE, it noted that the release court order had stated that it was not necessary to make further enquiries about him. Given that it had been some years since the applicant’s brother’s release from detention, and given the applicant’s evidence that none of his other family members had been involved with the LTTE, the Tribunal did not accept that the applicant faced a risk of harm on the basis of any imputed political opinion or his membership of a particular social group consisting of his family;
c)taking into account the applicant’s circumstances and country information relating to the improved human rights situation for Tamils in Sri Lanka, the Tribunal found that the risk that the applicant would suffer harm as a young Tamil male was remote;
d)the Tribunal did not accept that the applicant faced a risk of harm in Sri Lanka as a failed asylum seeker. In that regard, based on country information, the Tribunal accepted that returnees with an actual or perceived link to the LTTE faced a risk of harm but it was not satisfied that returnees were regarded as having links to the LTTE or being opposed to the Sri Lankan government simply because they had been to a western country. The Tribunal did not accept that if the applicant were to return to Sri Lanka the authorities there would regard him as an LTTE supporter or as a person with links to the LTTE or that he would be of interest to them because of past suspicions related to his brother. While it accepted that the applicant might be subjected to questioning on his return, the Tribunal did not accept that such questioning would amount to serious or significant harm; and
e)the Tribunal found that the applicant did not face a real risk of serious or significant harm on the basis of his illegal departure from Sri Lanka. In this connection, it found that Sri Lanka’s Immigration & Emigration Act was a law of general application and applied to all returnees who had left Sri Lanka by irregular means regardless of ethnicity. The Tribunal found that country information indicated that people in the applicant’s circumstances only faced fines for breaching that law, with prosecutors seeking imprisonment only for those suspected of people smuggling. As there was no evidence before it that the applicant had been involved with people smuggling or terrorism, the Tribunal found that there was no reason to suspect that he would be accused of this and thereby possibly face long-term imprisonment. The Tribunal thus found that on the applicant’s return to Sri Lanka he would face short-term detention prior to applying for and obtaining bail and being fined for breaching immigration laws. While the Tribunal accepted that prison conditions in Sri Lanka were poor, it did not accept that any problems the applicant would face as a result of questioning or charges or cramped, uncomfortable and unsanitary conditions in remand for a short period of time would amount to persecution for a Convention reason or to significant harm, particularly as those factors applied to the general population and not just to Tamils. The Tribunal also noted information concerning the mistreatment of Tamil political prisoners suspected of involvement with the LTTE but as it did not accept that the applicant would be suspected of such involvement, it found that he would not face a risk of such harm during his detention.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Second Respondent erred in law, with the error being a jurisdictional error, by failing to discern a Convention nexus in the Applicant’s situation.
Particulars
(a)The Applicant stated that his elder brother was in the LTTE as a GPRS Operator and Sri Lankan authorities arrested and detained him but the Second Respondent failed to discern and make a finding that the Applicant was linked to the LTTE.
(b)There was country information before the Second Respondent that persons like the Applicant, with LTTE links were persecuted in Sri Lanka.
(c)Second Respondent ‘read into the decision’ it’s own version of things rather than considering the country information which suggested that persons like the Applicant were at risk of harm in Sri Lanka
(d)The Applicant will endevour to tender the transcript of the Second Respondent’s hearing.
2.The decision of the Second Respondent is so unreasonable that no reasonable person would have made such a decision.
(a)There was evidence before the Second Respondent that the Applicant will be harmed on return to Sri Lanka and despite this the Second Respondent made a decision which is adverse to the Applicant.
Ground 1
The claim in the first particular of the first allegation in the application, that the applicant had links or would be perceived to have had links with the LTTE, arose out of the claims he made concerning his brother. Those claims were not accepted by the Tribunal. Further, the applicant did not claim that he had any links of his own to the LTTE. In circumstances where such claims to a connection with the LTTE as the applicant made were not accepted by the Tribunal, no error is shown by the fact that it did not make a finding that the applicant was linked to the LTTE.
The second particular of the first allegation pre-supposes that the applicant had links with the LTTE. However, the Tribunal made no such finding. Consequently, the second particular of the first allegation fails to identify any jurisdictional error on the Tribunal’s part.
Contrary to the third particular of the first allegation the Tribunal did consider country information as its decision record discloses. In paras.43 and 48 it specifically referred to having considered country information provided by the applicant’s representatives and at paras.25 to 29 it set out country information it obtained from other sources and which it ultimately preferred. Importantly, the applicant did not identify any particular aspect of the country information before the Tribunal which it had not considered.
The applicant’s assertion in the third particular that the Tribunal “read into the decision it’s [sic] own version of things” is far from clear. It appears to imply that the Tribunal’s decision was arbitrary or capricious because proper regard was not had to the country information. I do not accept that proposition. The Tribunal did have regard to the country information and its decision was careful and thoughtful.
In relation to the fourth particular of the first allegation, it can be recorded that the applicant did not seek to tender a transcript of the Tribunal hearing.
For these reasons, the first ground of the application does not disclose jurisdictional error on the Tribunal’s part.
Ground 2
As the Minister observed in his written submissions, the Tribunal’s decision was based on the individual and cumulative claims made by the applicant, such evidence as it accepted and relevant country information. The relevant country information to which the Tribunal had regard provided probative evidence to support its findings. In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 the High Court made it clear that if probative evidence can give rise to different processes of reasoning, and if reasonable minds can draw different conclusions from that evidence, a decision cannot be said to be unreasonable simply because one conclusion has been preferred over another. The conclusions which the Tribunal reached were open to it on the evidence before it and not such that it could be said that no reasonable Tribunal would have reached them. Consequently, the second ground of the application is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 23 December 2015
2
3