AEQ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 986
Federal Circuit and Family Court of Australia
(DIVISION 2)
AEQ21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 986
File number(s): PEG 14 of 2021 Judgment of: JUDGE VASTA Date of judgment: 2 November 2022 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submission/s: 2 November 2022 Date of hearing: 2 November 2022 Place: Brisbane Counsel for the Applicant: Mr McIntyre Solicitor for the Applicant: Chisholm Law Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 14 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AEQ21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
2 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application filed on 20 January 2021 as amended on 1 October 2021 be dismissed.
2.The Applicant pay First Respondent’s costs of and incidental to the application fixed in the sum of $ 7,853.00.
NOTATION:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
On 17 December 2020, the Administrative Appeals Tribunal, (“AAT/Tribunal”), affirmed a decision not to grant the Applicant, AEQ21, a protection visa. On 20 January 2021, the Applicant asked this Court to review that decision.
The background to the matter is that the Applicant is a citizen of Sri Lanka. He came to Australia by setting foot on Christmas Island on 4 March 2011, having travelled, it would seem, by boat from India to Christmas Island. On 14 April 2011, the Applicant requested that the Department make a protection obligations determination in respect of him. The purpose of that assessment was that it might lead to the Minister making a favourable decision to lift the statutory bar against him applying for a visa or to actually grant him a visa.
On 21 June 2011, an officer of the Department assessed the Applicant was not a person to whom Australia owed protection obligations. This determination was automatically referred for an independent review, and the Applicant was afforded an opportunity to provide further information for the purposes of that review, and with the assistance of a lawyer, he did so.
On 21 December 2011, the independent protection assessment reviewer recommended that the Applicant be recognised as a person to whom Australia has protection obligations under the Refugees Convention. The Applicant was advised that he had that positive assessment on 4 January 2012, though that advice included reference to the policy that the reviewer’s assessment would be accepted, but this did not necessarily mean that he, the Applicant, would be granted an Australian visa.
On 13 March 2012, he was granted both a class UJ (subclass 449) humanitarian stay visa, and he was given a bridging visa. He has been on a bridging visa since that day.
On 29 October 2015, he was advised that the Minister had exercised the power to allow him to lodge a valid application for a Safe Haven Enterprise Visa, and the Applicant did so, making the application for that visa on 5 February 2016. That application was refused by the delegate on 6 September 2017.
On 14 September 2017, the Applicant sought review of the delegate’s decision in the Tribunal. The Tribunal had, as it were, two hearings, one on 29 September 2020 and then another on 26 October 2020. As I have previously mentioned, on 17 December 2020 the Tribunal affirmed the delegate’s decision.
The Applicant said that he feared harm from the Sri Lankan authorities on the basis of his Tamil ethnicity, his imputed political opinion as an LTTE supporter, or sympathiser, or even member, and also the membership of a particular social group, being a returnee from the west or a failed asylum seeker.
The Applicant had affirmed to the Tribunal that this were a fair and accurate summary of his claims for protection. The Applicant reiterated to the Tribunal much of what it was that he said was his history. He also was able to give post-hearing submissions about those matters to the Tribunal.
At paragraph 77 and following, the Tribunal made findings as to the Applicant’s history.
The Tribunal said that they found that the Applicant was a Tamil male from northern Sri Lanka, and, from a young age, following the separation of his parents, the Applicant was raised by his maternal grandparents. He had minimal contact with the second family of his mother. The Applicant’s contact with his mother’s second family was limited to routine visits, mainly by the Applicant’s mother to the Applicant’s home.
The Tribunal found that the Applicant married a Tamil woman from a nearby village in 2004. Together they had a son in 2005 and they initially lived in the village which was the wife’s home village. At the height of the Sri Lankan civil war, the Applicant, the wife, his son, and the grandmother of the wife relocated to Colombo as a family unit for about seven months.
They then relocated back to the original area that the Applicant came from, and shortly thereafter, the Applicant secured employment in the construction industry in Qatar. During the civil war, the Applicant was questioned a number of times by agents of the Sri Lankan state, including members of the military forces. The Applicant departed Sri Lanka lawfully to work in Qatar in 2008. He returned to Sri Lanka voluntarily and lawfully in 2009.
On arrival, he initially returned to his original area and his family unit, who were there. He worked as a day labourer in that area. In 2009, through family connections, the Applicant was able to secure the possibility of employment in southern India. He then travelled to Colombo, where he lived briefly, in transit to India.
While he was in Colombo he was questioned by CID officers. The Applicant then departed Sri Lanka lawfully, as planned, and took up the residential employment opportunities arranged for him by his extended family members, who were long-term residents of India. After a settling-in period of a few months, the Applicant was joined in India by his wife and their son, as they had planned. The wife and the son were able to leave Sri Lanka lawfully as well.
Sometime in 2011, the Applicant’s marriage became unhappy. The wife and the son returned to Sri Lanka, voluntarily and lawfully, to locate and re-join the grandmother of the wife in northern Sri Lanka. The Applicant remained in India. The Applicant’s family unit has not been reunited since that time.
The Applicant continued to be in electronic communication with his son, but his marital relationship ended some years ago and his wife eventually petitioned for divorce in Sri Lanka in early 2019.
Following the departure of his wife and son from India in 2011, the Applicant began exploring other migration options. Assisted by his aunt, he considered the possibility of entry into France. After this possibility became problematic, the aunt suggested relocating to Australia. At this point the Applicant utilised the services of a people smuggler and departed India unlawfully by sea, with the intention of entering Australia as an unauthorised maritime arrival.
The Applicant has social contacts within the Perth Tamil community and has attended public Tamil cultural events since 2016, including Tamil diasporic commemorations acknowledging the Tamil perspective on the Sri Lankan civil war.
The Tribunal looked at “the imputed political opinion as an LTTE supporter or sympathiser or member”. The Tribunal did not accept that the Applicant had any fear of serious harm arising from this purported imputation. The Tribunal said, at paragraph 105, that having travelled lawfully to India from Colombo International Airport on his Sri Lankan passport in 2009, the Applicant was known by the Sri Lankan authorities to be outside Sri Lanka.
On balance, the Tribunal said that they found the Sri Lankan authorities would have no reason to make inquiries as to the Applicant’s whereabouts at either the home of his mother, where he had never ordinarily resided, or the post-2011 home of his former spouse, her son and grandmother, where he had never ordinarily resided.
Based on this finding, the Tribunal said that they did not accept the Applicant’s claims to be a person of continuing interest to Sri Lankan authorities after his lawful departure to India in 2009 were credible.
The Tribunal then looked at the claim that he was a member of a particular social group, that of being a returnee from the west or a failed asylum seeker. The Tribunal looked at what the Applicant had said but also a great deal of country information. The Tribunal found, at paragraph 142 of their reasons, that:
a)I accept that the applicant developed an interest in commemorating the participation of the Tamil community during the Sri Lankan civil war while living in Western Australia from November 2016. I do not accept that he was ever supportive of, or involved in, any LTTE-related activities before this time.
b)I accept that the Sri Lankan authorities may have some knowledge of the applicant’s participation in civil war commemorative events arranged by the Tamil community in Australia since November 2016.
c)The applicant’s evidence relating to the basic facts of his life before 2009 in Sri Lanka and relevant events in Sri Lanka post-2009 lacks coherence. There is an unaccountable absence of meaningful corroborative evidence over an extended period of time that would support key aspects of the applicant’s claims, given the applicant’s continuous contact with close family members in Sri Lanka since his departure in 2009. These considerations suggest that his claims are unacceptably vague and lacking in credibility.
d)In particular, the applicant’s sworn statements about the nature of his relationship with his mother’s second family has lacked transparency and clarity over time. This failure by the applicant to fully disclose the basic facts of his early life in Sri Lanka at the first reasonable opportunity does not appear to be reasonable in all the circumstances. I do not accept that anything arising from the lived experience of the second family of the applicant’s mother gives rise to the applicant being imputed with a particular profile of interest to the Sri Lankan authorities for any reason arising from actual or imputed LTTE affiliation.
e)I accept that the applicant may be imputed with generalised LTTE support given his lengthy membership of the Sri Lankan Tamil diaspora.
f)I do not accept the applicant’s claims to be a person of continuing interest to Sri Lankan authorities after his lawful departure to India in 2009 as being credible.
The Tribunal had regard to extensive country information, as I have said. And as a result of that, at paragraph 156 of their reasons the Tribunal said:
156.On the basis of the foregoing, while I accept that the applicant may face some discrimination on return to Sri Lankan now or in the reasonably foreseeable future for the essential or significant reason of his membership of what might be termed the particular social group ‘returnees from the west/failed asylum seekers’, this would not amount to a real chance of serious harm to the applicant on return for the purposes of s.36(2)(a) of the Act.
157Having found that the applicant did not make that criterion at s.36(2)(a) of the Act, I have considered the alternative, complementary criteria at s.36(2)(aa) of the Act. I note that the threshold for real risk of significant harm is the same as that for the assessment of real chance of serious harm. For the reasons I have given above, I am not satisfied that, as a necessary and significant consequence of the applicant being returned to Sri Lanka that he would face a real risk of significant harm from any person because of his being a returnee from the west/failed asylum seeker now or in the reasonably foreseeable future.
Having come to those conclusions, the Tribunal affirmed the decision not to grant the applicant a protection visa.
Whilst the application for review was filed on 20 January 2021, on 1 October 2021, the Applicant filed an amended originating application. The hearing today has proceeded upon the grounds that were contained in that application. Going through those grounds seriatim,
1. The Tribunal made a jurisdictional error through failing to consider, or to properly consider:
•relevant country information before it concerning the election of Gotabaya Rajapaksa as President of Sri Lanka in November 2019 and the change of government in Sri Lanka; and /or
•the applicant’s expressed fear of harm upon returning to Sri Lanka due to his race and imputed political opinion given the current government.
The fact of Mr Rajapaksa’s election in 2019 was not a particular matter that was raised during the course of the hearing, though it was mentioned in the submissions that the Applicant had made to the Tribunal during the course of the application which started in 2016. At CB 489, in a very large paragraph as part of the submission that was given to the Tribunal, the Applicant was speaking about the life of a Tamil in Sri Lanka and how prejudicial it is for someone in the position of being a Tamil male. This sentence then appears:
Further, we note Gotabaya Rajapaksa was elected as President in November 2019. Given his brother Mahinda Rajapaksa was the Defence Minister between 2005 to 2015, a period of great conflict in Sri Lanka, there is serious concerns that the new President will further curtail the rights of minority groups, particularly Tamils. Human Rights Watch in their most recent report note that Tamils, particularly in the northern province, continue to face harassment and intrusive surveillance.
The submission continued with more reference to quite a number of reports from DFAT to Human Rights Watch to the United Kingdom Home Office.
Having gone through the submissions that were made and the references to all of the country information, there is no country information that refers to a deterioration in the quality of life suffered by Tamils since the election of Mr Rajapaksa. The ground is a ground that, in effect, says that there is “to be inferred on the material”, a claim that life has gotten worse, or will get worse, for Tamils because of Mr Rajapaksa’s election and there had been no consideration by the Tribunal of that claim.
It seems to me that that claim has not been one that has been made out on the material, as the authority of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 speaks of claims being made on the material.
However, in the reasons of the Tribunal, the Tribunal speaks of those submissions. At paragraph 110, the Tribunal said:
The representative’s submissions dated 23 September 2020 include a helpful summary of selected country information sourced between 2016 and mid-2020 relating to the treatment of Tamils, actual or imputed LTTE operatives and supporters, the general security situation in Sri Lanka, and the treatment of detainees by agencies of the Sri Lankan state. There is some analysis of how this country information might be said to apply to the applicant using the analysis adopted by the agent based on credibility assumptions that are not shared by the Tribunal in this decision. However, I note that it is broadly consistent with the country information relied upon by the tribunal to the extent that it is relevant.
At paragraph 119, the Tribunal said:
I note the further country information relevant to the applicant’s claims for protection is also surveyed in the 17 November 2020 submission. To the extent that this country information is descriptive, it appears to be consistent with country information relied upon by the delegate in the first instance, and that relied upon the Tribunal on review. To the extent that the country information surveyed by the delegate is speculative, both about the treatment of the Tamil minority generally (or in the north of the country more particularly), and about the nature of the Rajapaksa government and its various agencies of state, the direct relevance of such country information to the particular circumstances of the applicant is not clear.
It seems to me, then that, when one looks at the combined force of paragraphs 110 and 119, the Tribunal has looked at what has been put before it and has considered it and has found that it is not of particular relevance. This is especially so, as I have earlier commented, that there is no material that suggests that there has been any deterioration in quality of life for Tamils, and certainly no information that says that any deterioration in life for the Tamils can be directly correlated to the election of the Rajapaksa government.
In those circumstances, I cannot see that ground one illustrates any jurisdictional error, and it, therefore, fails.
Ground 2 is that the:
2. The Tribunal made a jurisdictional error by relying on illogical findings of fact made through failing to consider relevant evidence before it; and based on those findings reaching a credibility finding that was unreasonable, irrational or illogical in all the circumstances.
This ground is based upon a finding by the Tribunal that the Applicant had not been fully frank with the department about his early life. The Applicant says that such a finding is illogical because the Applicant had always given his address and had not sought to hide his early life but had never particularly been asked. The Applicant clarified everything in his October or November 2020 statutory declaration.
The Applicant submits that the adverse credibility finding that the Tribunal made concerning the alleged failure to fully disclose the basic facts of his early life in Sri Lanka was unreasonable, irrational or illogical in all of the circumstances.
However, it seems to me that one must look at what the Tribunal actually said and the context in which it was said. At paragraph 78 of the Tribunal’s reasons, under the heading of “Finding”, the Tribunal said this:
It is significant that the applicant failed to disclose the true facts relating to his being raised by his maternal grandmother in Sri Lanka from a tender age following the separation of his parents until he was closely questioned at the second hearing before the Tribunal on 26 October 2020. It is not sufficient to answer this lack of candour for the applicant to state that he was not asked before that time. Especially when the applicant has sought to colour his own claims by a narrative implying, as it clearly and consistently did before all prior tribunals of fact leading to the present review, that the applicant formed part of his mother’s second family unit. This failure to fully and candidly disclose the basic facts of the applicant’s life in Sri Lanka puts much of his evidence relating to the second family of the applicant’s mother into a different light. It also suggests that the applicant’s evidence lacks credibility in material respects. I find, therefore, that the applicant has not appropriately disclosed or characterised the basic facts of his life in Sri Lanka as these relate to his mother or his mother’s second family. Consequently, I find that it is not appropriate in the circumstances to give the applicant the benefit of any doubt to the extent that his evidence relates to those aspects of the applicant’s claims.
Having regard to this finding of the Tribunal, for the finding to be irrational or illogical, the sentence that is in the middle of that paragraph must be the sentence that is irrational or illogical; that being that, “the applicant had sought to colour his own claims by a narrative implying, as it clearly and consistently did before all prior tribunals of fact leading to the present review, that the applicant formed part of his mother’s second family unit.” It is instructive to look at the following aspects.
In his initial request for a refugee status assessment, on 14 April 2011, the Applicant stated that he was unemployed at home with parents between 2003 and 2004.
In his statutory declaration dated 14 April 2011, he stated:
My parents separated after I was born. I then lived with my mother.
In his submission to the independent reviewer dated 1 December 2011, it was submitted that the Applicant then lived with his mother.
In a further statutory declaration which was submitted to the department in February 2016, the Applicant stated:
My parents separated after I was born. I then lived with my mother.
A core part of the Applicant’s claim was his membership of the mother’s family unit; that is, that he would be imputed with a pro-LTTE opinion because of his brothers.
When it was that the Applicant was questioned, he admitted, as I have earlier said, that he lived with his grandmother after separation and that his mother lived with her new husband and second family some five kilometres away and she would visit the Applicant weekly. The fact is, he was never part of the mother’s second family.
The Applicant filed another statutory declaration for the Tribunal following the hearing in October 2020 where he stated:
I wish to clarify that while I lived with my grandmother after my parents separated, I spent time with my mother, stepfather and half-siblings at least once per week. As I explained at my hearing, they would come and visit me.
The fact that the Applicant had to start that sentence with “I wish to clarify” is an admission by him that he had not made it clear as to what the true situation was. In fact, he had given a very false inference throughout his applications that he had been part of his mother’s second family.
There is nothing that was unreasonable, irrational or illogical in what the Tribunal said about this aspect, and there is certainly no jurisdictional error that is illustrated by ground two. Ground two also fails.
Ground Three is that:
3. The Tribunal made a jurisdictional error through overlooking relevant evidence concerning the harassment by the CID of the applicant’s son.
What can be seen from what the Applicant told the protection obligations evaluation interviewer, what the Applicant made in an early submission to the Department, and what the Applicant said in a statutory declaration, the Applicant maintained that when his wife and son returned from India to northern Sri Lanka, the wife was approached, either by the Sri Lankan Army or the by CID or some form of authority and threatened. She was told to tell the authorities where the Applicant was, and the threat was made that she and the child would be harmed or that the child would be taken away.
The Tribunal, in their reasons at paragraph 93, begin the paragraph with these words:
Accordingly, there is nothing before the Tribunal to suggest that the applicant’s son or grandmother in Sri Lanka have experienced physical harassment, intimidation or threats in Sri Lanka from agents of the Sri Lankan state for the essential or significant reason of their association with the applicant.
This statement is literally incorrect. It was not the case that there was nothing before the Tribunal. There was something before the Tribunal from the Applicant, who said that his wife had been threatened and the threat involved his son, in that the threat included the suggestion that the son would be harmed or the son would be taken away. The Applicant submits that the Tribunal has overlooked that material.
It is difficult to say that the Tribunal had overlooked that material, because, at paragraph 95 of the reasons, the Tribunal said:
I accept that the applicant’s former spouse may have been questioned about the applicant’s whereabouts in 2011, shortly after her return without him to Sri Lanka from India.
That is a reference to what the Applicant had claimed was the threat to the son. The question is whether this, if it is accepted that is an error, is a jurisdictional one.
When the Tribunal is assessing the evidence in the section where paragraphs 93 and 95 appear in the reasons, the Tribunal is speaking about the Applicant’s imputation of being an LTTE sympathiser or member. As the Respondent submits, the threat to the son was made to the mother and that there was no direct threat or harassment or intimidation ever pointed directly to the son.
That may be a small point of difference, but to see whether it is a jurisdictional error one has to look at the context.
Later, in paragraph 95 of their reasons, the Tribunal said this about the applicant’s claim about what happened to the wife, which they accepted. The Tribunal said:
…The singularity and datedness of such an inquiry, and the absence of any corroborating evidence is more suggestive that the applicant is not of continuing interest to the Sri Lankan authorities than it is suggestive that there is any current interest in the applicant by those agencies.
The true finding of the Tribunal is that, even accepting what the Applicant says that the wife has told him such a matter, such a threat was a single incident and that there has been nothing that has occurred since then. The son himself has not been directly physically intimidated or threatened or harmed because of his association with the Applicant. Nor has the grandmother been physically assaulted, intimidated or harmed because of her affiliation with the Applicant.
The critical finding was that, whatever was said to the wife about the son, it was a single incident over nine years ago, which suggested that the Applicant was not of any ongoing interest to the Sri Lankan authorities. For that reason, even if one could categorise what was said in the first line of paragraph 93 as an error, such an error lacked materiality and, therefore, it could not be classed as a jurisdictional error.
For those reasons, ground three fails.
Ground four states that:
4. The Tribunal made a jurisdictional error by failing to consider a claim concerning the LTTE’s forceful recruitment of young men in Sri Lanka which emerged from the evidence before the Tribunal, set out at [50] and [77], that the applicant had from a young age, following the separation of his parents, been raised by his maternal grandparents in Palinagar, Vavunikulam.
In effect, this ground posits the following matters: that it is well known that the LTTE recruit young Tamil males; it is well known that the LTTE forcibly recruited young Tamil males; it is well known that the LTTE expected in its formal recruitment that every Tamil family would provide one member to the LTTE cause; it is well known that the LTTE preferred, and often insisted, that the member from each family be the eldest son of the family. Therefore, the Applicant, having grown up in his grandmother’s household, could have been seen as the eldest male. Therefore, the authorities in Sri Lanka now, or in 2020 when the decision was made, would look at the Applicant under the lens that not only is he a young Tamil male from the north of Sri Lanka, but that he was the eldest in the family and, therefore, it is more likely that he had been attempted to be recruited by the LTTE, which would increase his profile as being an LTTE sympathiser/supporter/member/etcetera.
The Applicant claims that the Tribunal failed to consider whether anything arising from the Applicant being that Tamil male in his grandparents’ household could have given rise to him being imputed with the profile and, therefore, that constitutes a jurisdictional error.
It seems to me that whether the Applicant was a target for recruitment is not the question; it is a question of whether he can be imputed with the profile. That was a question for the Tribunal to look at, whether the imputation from the profile caused him to face a risk of significant harm on return to Sri Lanka.
The Applicant had given evidence as to what had occurred to him by the Sri Lankan authorities. Those meetings and conflicts with the Sri Lankan authorities only occurred because the Applicant was imputed with a pro-LTTE opinion. The Tribunal accepted that the two incidents that the Applicant spoke of actually occurred.
Therefore, the Tribunal accepted that the Applicant had suffered at the hands of the Sri Lankan authorities because they imputed that he had a pro-LTTE opinion.
In that respect, whether the Tribunal, as it were, looked at whether he would have been recruited or not really was of no consequence, because they had already found that he had been targeted on two occasions because he had been imputed with the pro-LTTE opinion. Now, that would not have changed whether he had been seen, or considered, to have been a target for recruitment or not.
It seems to me that this exercise that the applicant says the Tribunal should have made was an irrelevant exercise. The fact that the Tribunal did not undertake that exercise, it seems to me, does not illustrate any jurisdictional error.
For that reason, ground four fails.
Having looked through an extremely thorough and detailed set of reasons by the Administrative Appeals Tribunal, I am also satisfied that there are no other bases to suggest that this Tribunal came to its conclusions through any jurisdictional error.
For those reasons, I dismiss the application with costs in the sum of $7853.00.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 29 November 2022
0
1
0