AEK16 v Minister for Immigration

[2016] FCCA 2896

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEK16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2896

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by not asking itself the correct question – whether the Tribunal’s reliance upon country information was illogical or irrational – whether the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) – whether the Tribunal erred in finding that the applicants did not face a real risk of harm – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 425

First Applicant: AEK16

Second Applicant: AEL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 172 of 2016

Judgment of: Judge Smith

Hearing date: 3 November 2016

Date of Last Submission: 3 November 2016

Delivered at: Sydney

Delivered on: 23 November 2016

REPRESENTATION

Counsel for the Applicants: Mr A. Kumar

Solicitors for the Respondents: Ms C. Hillary, DLA Piper

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 172 of 2016

AEK16

First Applicant

AEL16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of Myanmar who arrived in Australia on 23 November 2013 on visitor visas. On 4 February 2014 they applied for protection visas. The principal claims in support of that application were made by the first named applicant, who is the wife of the second named applicant. For that reason it is convenient to refer to her as the applicant.

Background

1. The applicant claimed that she feared harm in Myanmar because she was a Muslim. She said that the problem started in February 2013. An angry mob of Buddhist Nationalists and monks viciously attacked a Muslim school and several businesses in a neighbouring suburb of Rangoon after the school applied for permission to have its roof repaired. It was suggested that the mob believed that the building was being developed into a mosque. The mob returned the following day and ransacked businesses and homes. The applicant said that the potential to trigger further religious tensions was still simmering and that she and her husband had to flee the area to stay with friends in the city.

2. The applicant said that she and her husband planned to spend a few months in Australia to escape from the situation as they had been abused, threatened and hit in the street. The applicant claimed that they were denied transport on buses and taxis, not sold food or household goods by vendors, and discriminated against as though they were third class citizens or slaves.

Tribunal’s decision

1. On 23 September 2014 a delegate of the Minister made a decision not to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal[1] for review of that decision. In the course of that review, the applicant attended a hearing conducted by the Tribunal on 22 December 2015. On 7 January 2016 the Tribunal affirmed the decision of the delegate.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The Tribunal first made a number of preliminary findings including as to what had occurred in the past. It then turned to consider whether there was a real chance of serious harm or a real risk of significant harm in the future. The Tribunal’s preliminary findings were:

   a)the applicant is a national of Burma;

   b)she does not have statutory effective protection in any safe third country;

   c)the applicant is a Muslim but she is not a Rohingya;

   d)two of the applicant’s adult children are now resident in their homes in Burma;

   e)the applicant experienced some limited discriminatory treatment as a Muslim in Burma, particularly since 2011;

   f)the applicant was near extremist Buddhist groups in Rangoon in February 2013 who demanded that Muslims who are working in the city enclaves side-by-side with other ethnic and religious groups, identify themselves by placing symbols on the front doors of their businesses and homes, however that the phenomenon was not widespread;

   g)after the February 2013 incident the applicant and her husband resided with a Muslim friend for approximately one week before returning to their own home in Rangoon;

   h)during the nine months that the applicant and her husband lived in their own home, she may have heard persons abusing Muslims on the street, (particularly in the more immediate aftermath of the early 2013 actions of extremist Buddhist groups). However neither the applicant nor her husband were ever personally abused by members of such groups. The applicant found this distressing.

3. The Tribunal then referred to a range of country information. It was not satisfied, on the basis of that information, that either the applicant or her husband had a real chance of suffering serious harm in the reasonably foreseeable future in her home region in Burma, that is Rangoon. For that reason, the Tribunal was not satisfied that the applicant satisfied the criterion in sub-s.36(2)(a) of the Migration Act1958 (Cth).

4. The Tribunal next found on the basis of the applicant’s claims that it had accepted, and the country information that it had cited in its decision, that the applicant did not face a real risk of significant harm in Burma and therefore did not satisfy the criterion in sub-s.36(2)(aa) of the Act.

5. For those reasons the Tribunal affirmed the decision of the delegate.

6. The applicant now seeks judicial review of the Tribunal’s decision. There are six grounds in the amended application; however, grounds two and four are no longer pressed.

Consideration

First ground: failure to ask the correct question-whether the applicant is likely to suffer harm in her area of Yangon (Rangoon).

1. In the written submissions the applicant argued that:

   The Tribunal failed to ask itself whether the Applicants could be subject to harm were the Applicants - were the Applicants to go out / the Applicants did not experience by confining themselves to the house and whether the Applicants would be subject to harm.

2. It is not at all clear what this means. If it is intended to suggest that the Tribunal erred by finding that the applicant could avoid harm by staying indoors, it has no application to the present case. The Tribunal simply did not make that finding. The Tribunal accepted that there was societal violence against Muslims in Burma, but that not all Muslims in Burma (particularly those who were citizens and not stateless Rohingya), faced a real chance of suffering serious or significant harm and, that in Rangoon, where the applicant lived, that was particularly the case.

3. There was no claim made by the applicant that she would, or had to, live anywhere else other than in Rangoon. It was natural for that reason for the Tribunal to consider the prospect of harm occurring in that place.

4. In his oral submissions, counsel for the applicant put the argument differently. He said that the Tribunal erred by failing to consider whether risk of harm to the applicant was increased, because during the February 2013 riot, the extremist Buddhist groups had made them identify themselves as Muslim by placing symbols above their door. That claim was never made.

5. In her original claims, the applicant claimed that the riot had been in a suburb next to hers. The Tribunal accepted, at [29], that the applicant had been “near extremist Buddhist groups in Rangoon in February 2013” and that those groups had “demanded that Muslims who work in inner-city enclaves, side-by-side with other ethnic and religious groups, identify themselves by placing symbols on the front doors of their businesses and homes.” However, quite apart from not being in the same area as the extremist groups, the applicant did not work in inner-city enclaves. She described herself as a housewife. Her husband was retired.

6. For those reasons the first ground is rejected.

Ground three: the Tribunal’s decision was illogical or irrational

1. This ground is based upon the proposition that the Tribunal found that, as tourists were not being attacked, then the applicant was unlikely to be harmed. However, that is not what the Tribunal found.

2. At [34] of its reasons, the Tribunal noted that the delegate had put to the applicant that the safest part of Burma was Rangoon. It then noted the following country information:

   …

   After as many as 6,000 tourists visited in 2011, the number traveling to the archaeologically significant town of Mrauk U, known for its historic Buddhist shrines, or stupas, has dwindled to hundreds … When the riots started, the violence caused tourist numbers at Ngapali beach, considered one of most beautiful (sic) in the country, to fall to 14,000 – a drop of about 50 percent. The numbers have since rebounded and are on pace for about 20,000 this year.

   (Emphasis in original)

3. The Tribunal contrasted this with the following information concerning Rangoon:

   Underscoring the impact of the violence, Yangon, the country’s main city, which has been largely unaffected by unrest, welcomed 817,000 tourists in 2013, a 46 percent increase from the year before.

   (Emphasis added)

4. The point made in this information, and relied upon by the Tribunal, was not that there were tourists being attacked or not attacked, but rather, that the number of tourists in various parts of the country reflected the prevalence of unrest in those parts of the country. Thus, where there was little unrest (Rangoon) the numbers of tourists actually increased. There is no illogicality present either in the country information or the Tribunal’s reliance upon it. The third ground is rejected.

Ground five: the Tribunal breached s.425 of the Act

1. The applicant claims that at the hearing, the Tribunal directed the applicants and limited her answers to “yes” or “no” answers, thereby precluding her from fully presenting and arguing her case. This argument is not based upon the whole of the hearing but only upon one passage which is recorded mostly at p.19 of the transcript of that hearing. The questions asked by the Tribunal during such a small part of a hearing is rarely likely to establish that the applicant was not given a real and meaningful opportunity to give evidence and present arguments as required by s.425 of the Act. Certainly, that is the case here.

2. The applicant relies upon the following passage at page 19 of the transcript (without correction):

   …

   Member:I’m sorry, just ah I’m sorry, I don’t want an explanation. I want a yes…

   Unknown

   Member:Please do not interpret that. I would like a yes or a no.

   Interpreter

   Applicant

   Member:I’m sorry I’m not understanding why we can’t get a yes or no… I don’t mind if you don’t agree with me, that’s alright but I have no – I’m finding it very difficult to follow what you are saying and I’m trying to therefore clarify what you are saying. The people on the streets, you have just said look like they want to cause problems. Was these the people that you grew with in your neighbourhood or not?

   Interpreter

   Applicant

   Interpreter:   Yes these people are from our suburb.

   Member:Okay were they neighbours that you grew up with? Yes or no.

   Interpreter

   Applicant

   Interpreter:   Yes.

   Member:Okay because you’ve just told me that the neighbours that you grew up with weren’t the ones that were causing problems with the people shouting slogans and the strangers that were coming into your neighbourhoods.

   …

3. Even if this were the only passage in the whole of the transcript, it would not reveal that the applicant was denied the opportunity to give evidence and present arguments. It is clear that what the Tribunal was doing was trying to clarify an answer previously given in response to a question asked by it.

4. The previous page[2] of the transcript reveals that the Tribunal was attempting to elicit evidence from the applicant about the identity of the people who had frightened her:

   [2] Transcript, p.18

   …

   Member:And you said that some of your neighbours threatened to kill you. Is that correct?

   Interpreter

   Applicant

   Interpreter:   I’m not telling ah those peoples are threatening but when ah we were around ah walking around the street ah those, ah those peoples are clearly doesn’t like us, doesn’t like me.

   Member:No I still don’t understand. So you are saying strangers on the street or people you knew?

   Interpreter

   Applicant

   Interpreter:   Yes the strangers actually they are shouting, they are ah shouting with their slogans and they are gone but the people who are from our suburb ah who are already in the suburb, these people are they are like, look like they want to create problem for us.

   Member:Okay so these aren’t people you grew up with? Is that correct? Just answer yes or no.

   …

5. Further, at the end of the passage on .19 relied upon by the applicants, the Tribunal explained the relevance of its question. The applicant then, contrary to what is asserted in support of this ground, gave an explanation of her answer. In other words, even though the Tribunal requested a “yes” or “no” answer to one question, even then, it did not prevent the applicant from explaining the answer that she gave. In light of that, it is unnecessary to examine the remaining 26 pages of the transcript to see whether she provides a context for the impugned passage. The answer to the ground is contained within the very passage relied upon. This ground is rejected.

Ground six: failure to consider the claim of denial of access to services and transport

1. The applicant argues that, while the Tribunal accepted that there was some societal discrimination against the applicant on the basis of her religion, it did not deal with her claim that she was denied transport on buses and in taxis.

2. The Tribunal record of this claim is at [17] of its reasons:

   …

   She also said they had been denied (some) transport on buses and in taxis; …

3. At [30], the Tribunal stated that it accepted that the applicant experienced “some limited discriminatory treatment as Muslims in Burma, particularly since 2011”. Further, at [37], the Tribunal stated that it accepted that “the applicant has been subject to a range of discriminatory treatment”. However, it was not satisfied that there was a real chance of her suffering serious harm in the reasonably foreseeable future in her home region in Burma.

4. On a proper understanding of the Tribunal’s reasons, it accepted the applicant’s claim to have been discriminated by having been refused some transport but found that the possibility of such treatment did not amount to serious harm. Whether or not conduct amounts to serious harm is ordinarily a matter of fact and degree. What is clear is that the Tribunal actually considered this aspect of the applicant’s claim. The Tribunal determined as a matter of degree that it was not sufficiently serious to bring the applicant within the definition of a refugee or for her to satisfy the complementary protection criterion for a protection visa.

5. Ground six is rejected.

Conclusion

1. The applicant has failed to establish any jurisdictional error in the Tribunal’s decision. The application must be dismissed.

2. The applicant did not oppose an order for costs in the amount of $4,000 in the event that she was unsuccessful. I consider that such an order is appropriate in the circumstances.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 23 November 2016