AFZ17 v Minister for Immigration
[2018] FCCA 1340
•7 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFZ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1340 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority’s decision involved an erroneous application of the real chance test – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 46A, 473CA Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2) Articles and other materials cited: |
| Applicant: | AFZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 143 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 7 May 2018 |
| Date of Last Submission: | 7 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the First Respondent: | Mr G Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 143 of 2017
| AFZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
This is an application for judicial review of the decision of the Immigration Assessment Authority dated 23 December 2016. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The applicant is a citizen of Sri Lanka who arrived in Australia on 19 October 2012. On 22 January 2016, the applicant lodged a protection visa after the Minister had exercised his power under s.46A of the Migration Act 1958 (Cth) to enable him to lodge a valid application for such a visa.
That application was based upon claims which are summarised at [5] of the Authority’s reasons, which I adopt for the purpose of this judgment and set out below:
●The applicant’s brother, J, was killed fighting for the LTTE[1] in 1997 and the applicant’s other brother S was a fighter in the LTTE but fled to Qatar where he now lives and works.
[1] Liberation Tigers of Tamil Ealem.
●As the applicant’s brother was killed while fighting for the LTTE, the applicant’s father arranged for forged documents to state that the applicant’s brother had died in shelling. The applicant believed this was done in an attempt to disassociate him from the LTTE.
●During his school years, the applicant and his brothers were often beaten and questioned by the Sri Lankan army when going to school.
●In about 1995-97, the applicant and his family were relocated to the Vanni due to the civil conflict and then returned to Jaffna but were placed in an army camp.
●After the applicant finish school, he obtained employment with the DDG which was involved in clearing land mines in the north of the country. In November 2006, the applicant was taken by the army and beaten and tortured. The army suspected him of being in the LTTE.
●The applicant’s boss questioned the army about the applicant’s treatment in November 2006 and the applicant was threatened he would be killed if he mentioned such incidents again.
●Following the applicant’s beating in 2006, he received treatment for about three months. The applicant however, did some work with his brother clearing trees and bush to earn some money.
●In about mid-2012, DDG completed its work in northern Sri Lanka. The applicant felt safe as long as he was working for the DDG. As the applicant could no longer secure work with the DDG, he made arrangements to depart Sri Lanka.
●A driver who worked for the DDG was killed and two other workers associated with the DDG went missing.
●The applicant fears he will be killed as his brothers were in the LTTE.
●The applicant noted that some army soldiers believe that mine clearance work can only be done by persons who were involved in planting mines. The army wanted the applicant to supply drawings and maps of mine clearance sites.
(Without alteration)
On 28 September 2016, a delegate of the Minister made the decision to refuse to grant the applicant a protection visa and the matter was referred to the Authority for review pursuant to s.473CA of the Act. The Authority made its decision on 23 December 2016. The Authority’s reasons are summarised in [6] to [13] of the first respondent’s submissions, which I will again adopt for the purpose of this judgment and set out below:
6.The Authority took into account a submission sent to it by the applicant on 21 October 2016. The submission attached a news article and a copy of a death certificate said to be of a person who worked for the DDG. The Authority did not consider that part of the submission that was a response to the delegate’s decision to be new information for the purposes of s.473DC of the Act. It further did not consider the death certificate to be new information, as the document was before the delegate. The Authority considered the news article to be new information and did not have regard to it as it was not satisfied of the matters in s.473DD(b).
7.The Authority did not accept that the applicant’s brother (‘J’) was an LTTE fighter who was killed in battle. Rather the Authority considered that the brother was killed in 1997 as the result of a shell attack, as there was documentation that supported this conclusion. In any event the Authority noted the death was 20 years ago and that the brother’s membership of the LTTE had no ongoing consequences for the applicant and his family. The Authority found the applicant’s responses to the delegate’s expressed concerns about his older brother (‘S’) to be ‘confusing and at times deliberatively evasive’.
8.The Authority considered the applicant’s claim to have been detained and mistreated by the army for three days in 2006. Whilst the Authority accepted it was plausible the incident occurred, it noted this occurred during the civil conflict, and the applicant on his own evidence was released after being cleared of any involvement in the bombing incident. The Authority did not accept that the incident caused the applicant to suffer injuries that prevented him from working. The Authority did not accept that after the incident the applicant told his boss at DDG causing his boss to take him to the army camp; this claim was not referred to in the applicant’s written claims.
9.The Authority considered the death certificate produced by the applicant, and whilst it accepted that a DDG staff driver was among those killed in about 2007 in Jaffna, it found that it was not clear how the incident would have ongoing repercussions for the applicant. The Authority was not satisfied there was any risk to the applicant of harm associated with his employment with DDG.
10.The applicant made additional claims of threats made against him by the army in 2006 and 2012. The delegate raised with the applicant at the SHEV interview that those claims had not previously been mentioned. The Authority found the applicant’s evidence concerning the incidents to be ‘vague, confusing and at times contradictory’. The Authority found the claims to be fabrications. Further, the Authority did not accept the applicant’s claims that authorities had visited his aunt’s house six months prior looking for him as it was not satisfied he had a profile when he left. The Authority was not satisfied the applicant was at risk of harm on the basis of his Tamil ethnicity or imputed political opinion.
11.The Authority accepted that Tamils had suffered discrimination in the past on the basis of ethnicity. By reference to country information, in particular DFAT reports, the Authority noted an overall decrease in monitoring in 2015, and a great improvement in the security situation in the north and the east since the end of the war. The Tribunal noted improvements in human rights, reconciliation and the political situation for Tamils since the election of the Sirisena government. The Authority was not satisfied ‘assessing the evidence overall’ that the applicant had a well-founded fear of persecution as a Tamil male from a former LTTE-controlled area.
12.The Authority considered whether the applicant would be at risk of harm for having illegally departed Sri Lanka, and if he were to return as a failed asylum seeker. It was not satisfied that there was any such risk to the requisite standard.
13.The Authority was not satisfied that the applicant met the requirements of the definition of refugee in s.5H(1) of the Act. Neither was it satisfied that he was entitled to complementary protection pursuant to s.36(2)(aa) of the Act.
(References omitted)
Critically, for present purposes, the Authority rejected the applicant’s claims insofar as they related to his personal circumstances: namely, what had occurred to him in the past and relevantly assessed the risk of harm that might arise upon his return to Sri Lanka on the basis of his Tamil ethnicity and the fact that he came from the north of Sri Lanka, and did so by reference to country information. The applicant’s ground of review is essentially that the Authority’ s approach to the question of the risk of harm that the applicant had upon return to Sri Lanka was effectively based upon the information that the circumstances in his country had greatly improved.
The applicant argued that the Authority’s reasoning process went from an examination, and apparent acceptance of, country information which went both ways to a conclusion (at [37]), that there was no real chance of serious harm upon return to Sri Lanka, and that an essential link in the reasoning was missing. It was argued that the missing link was a specific finding dealing with the discrimination and treatment that the Authority appears to have accepted still occurred in Sri Lanka.
This ground requires a close analysis of the relevant passages in the Authority’s reasons. Those are found at [30] through to [37], which I set out below:
30.The applicant was asked whether his family had any problems with the Sri Lankan authorities at the moment. He stated they didn’t but that the SLA and the CID had come in civilian clothes looking for him. When he was asked about the last time this happened he stated it was 6 months ago, they came to his aunt’s place, and asked for the ‘the one who worked in the mines’, where he is now and when he will come back. He stated they didn’t ask anything else and that after his aunt said she’d let them know when he came back, they left. He was also asked, prior to 6 months ago, when the last time was the Sri Lankan authorities had come asking for him. The applicant stated he couldn’t remember because he was stressed. When it was put to him that it appeared unusual that the army would come for him about six months ago and he could not recall any other occasion when the army had sought him, the applicant responded that it was hard to remember all the dates and times because “they were always stressed and agitated because they don’t know why they're coming”.
31.I am not satisfied that the Sri Lankan authorities visited the applicant’s aunt's home six months ago asking after him or that there were any other visits by the authorities after the applicant left Sri Lanka. As I have found above, the applicant does not have a profile with the authorities and if he had, I do not consider it credible that they would come looking for him at his aunt’s place rather than at home, four years after he left and asking after ‘the one who worked in the mines’ instead of asking for him by name which, if he was of any interest, they would surely know. The applicant was also unable to provide any evidence of other visits by the authorities to his home or family and while I am mindful that such an experience may induce stress, the fact that he was unable to provide any evidence of the authorities’ interest in him after he left leads me to conclude that he has fabricated this claim.
32.I am not otherwise satisfied that the applicant is at risk of harm on return to Sri Lanka on the basis of his Tamil ethnicity or imputed political opinion. The current Guidelines published in 2012 by the United Nations High Commissioner for Refugees state that in UNHCR’s opinion originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection in the sense of the 1951 Convention and its 1967 Protocol. There may be a need for protection if a person identifies as having engaged in diaspora activities that could be perceived as advocating for a separate Tamil state or as being anti-Government. In this case, the applicant specifically stated in his SHEV interview that he was not a member of the LTTE and had not engaged in Tamil separatist activity in Sri Lanka or elsewhere.
33.I accept that Tamils have, in the past, suffered discrimination on the basis of ethnicity. As noted above, the applicant’s experiences of being detained, questioned and mistreated by the authorities during the war appear to be common to Tamils who were often were singled out for discriminatory treatment (harassed, threatened, arrested) by security forces which suspected them of sympathy or links with the LTTE solely on the basis of ethnicity. Tamils also report that they suffered systematic discrimination in areas such as university education, government employment, access to justice and other matters controlled by the government and as recently as 2014 Tamils throughout Sri Lanka but especially in the north and east were still reporting that security forces and paramilitary groups frequently harassed young and middle-aged Tamil men.
34.DFAT, however, assesses that since then there has been an overall decrease in monitoring in 2015 although some individuals in the north and east still report being questioned and observed by the military; a sizeable military presence remains a factor in aspects of civilian life. Overall, it reports that since the end of the war, the security situation in the north and east has greatly improved.
35.In its 2014-2015 report, Amnesty International reported that minorities were singled out for arbitrary restrictions on freedoms of expression and association and that the army and police actively suppressed the rights of northern Tamils to publicly advocate for justice or to commemorate or mourn those killed in the armed conflict. There are, however, more recent indications of the Sirisena government’s intention to take a more proactive approach to human rights and reconciliation. The Sri Lankan National Anthem was sung in Tamil for the first time since 1949 at the official Independence Day celebrations held on the 4th of February 2016 and the UN High Commissioner for Human Rights began a four day official visit in February 2016 to review the implementation of recommendations made in his report to UN Human Rights Council and the subsequent resolution that was submitted to that Council on promoting reconciliation, accountability and human rights in Sri Lanka.
36.Politically it is apparent that the situation for Tamils has improved since the end of the civil war and particularly since the election of the Sirisena government. In parliamentary elections in August 2015, the Tamil National Alliance won 16 seats and for the first time since 1983 a Tamil (R Sampanthan, leader of the Tamil National Alliance (TNA)) was named as Sri Lankan opposition leader. In September 2015, five Tamils were named as members of cabinet. The government has also taken a number of other practical steps including the replacement of military governors in the Northern and Eastern Provinces with civilians, the return of land seized by the military during the war and the release of some individuals held under the PTA as well as symbolic steps such as renaming the anniversary of the end of the war from ‘Victory Day’ to ‘War Heroes Remembrance Day’. DFAT assesses that a number of the measures proposed by the government, particularly in response to the recommendations made in the report to UN Human Rights Council, would provide a platform to achieve genuine reconciliation if effectively implemented.
37.Assessing the evidence overall, I am not satisfied the applicant has a well-founded fear of persecution as a Tamil male from a former LTTE-controlled area. I accept that as a young Tamil male he was singled out for discriminatory treatment in November 2006 and during that detention was mistreated by the SLA. However, apart from that incident, the evidence is that the applicant was able to obtain stable paid with the DOG for 7 years and has also worked with his brother as a contractor clearing land. There is no evidence before me that he has been unable to obtain paid employment or that he has otherwise been unable to access basic services. Considering the applicant’s circumstances together with the information about the changed country conditions I am not satisfied there is a real chance the applicant would suffer serious harm on return to Sri Lanka now or in the reasonably foreseeable future on the basis of his ethnicity, his residence in the Northern Province or imputed political opinion.
(Footnotes omitted)
The analysis really needs to start from [32], but what must be borne in mind at this point of consideration is that, as I have noted, the Authority rejected the applicant’s claims concerning his personal circumstances. It is also an accepted fact that, by this stage, the civil war, in which most of the applicant’s claims arose, had well and truly ended. It ended in or around the middle of 2009.
So I turn, then, to consider the relevant paragraphs. At [32] of its reasons, the Authority started with its overall finding that it was not satisfied that the applicant, on the basis of Tamil ethnicity, was at risk of harm or imputed political opinion. It then referred to the current guidelines[2] of the UNHCR[3] (UNHCR guidelines), which were dated 2012. Those guidelines, and their place in the Authority’s reasons, are important because they stand in stark contrast to what is accepted by the Authority as having occurred prior to that time.
[2] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.
[3] United Nations High Commissioner for Refugees.
The UNHCR guidelines, as accepted by the Authority, indicated that originating from an area that was previously controlled by the LTTE does not in itself result in the need for international refugee protection in the sense of the 1951 Convention[4]. It went on to say:
… There may be a need for protection if a person identifies as having engaged in diaspora activities that could be perceived as advocating for a separate Tamil state or as being anti-Government. ...
[4] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).
The Authority noted that the applicant specifically stated that he was not a member of the LTTE and had not engaged in Tamil separatist activities in Sri Lanka or elsewhere. Those last comments by the Authority reveal relevantly that the Authority was referring to the part of the UNHCR guidelines insofar as it might affect people of Tamil ethnicity, and that it was adopting the opinion expressed in that guideline insofar as the applicant did not have personal characteristics that the guidelines suggested might give rise to a need for protection.
As a starting point then, the Authority had a basis for its conclusion expressed at the first part of that sentence, namely, that the applicant had no risk of harm. However, it continued to examine further and more recent information as it was required to do. In [33], the Authority referred back in time to the past where it accepted that Tamils had suffered discrimination on the basis of ethnicity and that certain levels of harm inflicted upon Tamils was common, who it found were singled out for discriminatory treatment by security forces.
The Authority noted other forms of discrimination after that reference, and also that “as recently as 2014” Tamils throughout Sri Lanka were still reporting frequent harassment of young and middle-aged Tamil men by security forces and paramilitary groups. As I have noted, the information referred to by the Authority went both ways. This appears to be part of the information that might have supported the applicant’s claims to have a well-founded fear of persecution for reasons of his Tamil ethnicity. The Authority continued, however, at [34] by noting that the Department of Foreign Affairs and Trade (DFAT) assessed two relevant matters.
First, that an overall decrease in monitoring had occurred since 2015, and secondly, that the security situation in the north and east of Sri Lanka had greatly improved. Now, those two matters stood potentially side by side with the matters referred to in the last part of [33], but it shows that the picture did not go all one way. I will return to the question of the situation being greatly improved, but note for present purposes that it was not the only thing, even in [34], that the Authority relied upon.
The Authority then continued, in [35], to mention further matters that went both ways. First, an Amnesty International report of 2014/ 2015[5] that concerned arbitrary restrictions on freedoms of expression and association, and that the Army and police actively suppressed the rights of northern Tamils to publicly advocate for police justice or to commemorate or mourn those killed in the armed conflict. It does not appear, from the material, that the applicant specifically claimed that he proposed to publicly advocate for justice, or to commemorate or mourn those killed in the armed conflict.
[5] “Amnesty International Report 2014/2015 – Sri Lanka”, Amnesty International, 2015.
Therefore, the information in the first part of [35] might appear to have some marginal relevance. However, it can be accepted that what is being addressed in the whole of [35], as shall be seen shortly, is the general situation of the way in which the government and authorities controlled by it, considered and treated minorities which must have included Tamils. That is important because of what follows in [35], which is where the Authority refers to information that there were “recent indications” that the Sirisena government intended to take a more proactive approach to human rights and reconciliation.
Some criticism appears to be implicit in the applicant’s submissions of the Authority’s reliance upon this information because it remains at a fairly high level and also at the level of intention rather than, in fact, upon the ground. However, the context is important. It is open to infer from that intention that the government has a different attitude to the particular minority in question here, being Tamils. That attitude, in itself, can give rise to inferences to what might occur in the future, bearing in mind that the Authority’s task is not simply to determine what might occur now, but what might occur in the reasonably foreseeable future.
The Authority continued with the analysis of the political level of circumstances in [36], recording that it was apparent that the situation for Tamils politically had improved since the end of the civil war and particularly since the election of the Sirisena government, which appears to have been in early 2015. The Authority then set out various information concerning the political landscape before returning to the DFAT assessment of:
...a number of the measures proposed by the government, particularly in response to the recommendations made in the report to the UN Human Rights Council, ...
The Authority accepted that this would provide a platform to achieve genuine reconciliation if effectively implemented. Counsel for the applicant suggested this was a curious finding insofar as it implicitly accepted that the recommendations had not yet been implemented. The criticism, as I understand it, went to suggest that, if the recommendations had not been implemented, then they could not impact upon the assessment of the chance of harm. However, in my view, that is not a fair reading of the Authority’s reasons.
The DFAT assessment did not relate specifically to discriminatory treatment or even persecution of Tamils, but rather only to genuine reconciliation. Reconciliation is something that occurs, more often than not, well after discriminatory treatment has ceased. It requires, generally speaking, a resolution between two parties who have been at odds (and significantly at odds with each other) and that resolution may occur a long time after a conflict has been resolved, if it occurs at all. For that reason, I do not find the finding curious in the manner suggested by Counsel for the applicant.
Then at [37], the Authority turns to its overall assessment. It starts by noting that it has assessed the evidence overall, and by which it must be referring to the evidence it has recently considered in [32] to [36], together with all of the other evidence put forward by the applicant, which it had either accepted or rejected as explained earlier in its reasons. It then, after setting out a number of its findings, concludes with the important sentence:
… Considering the applicant’s circumstance, together with the information about the changed country conditions I am not satisfied there is a real chance the applicant would suffer serious harm on return to Sri Lanka or in the reasonably foreseeable future on the basis of his ethnicity, his residence in the Northern Province, or imputed political opinion.
It is important to see, in that final sentence at [37], that the Authority took into account not only the “changed country conditions” but also all of the applicant’s circumstances. Those circumstances must include the Authority’s findings that the authorities in Sri Lanka did not have an adverse interest in him for any of the reasons claimed, or at all. Further, the phrase “changed country conditions” is a rolled up conclusion of what the Authority has drawn from all of the information that was set out at [32] through to [36].
It does not, in my view, readily lead to the conclusion that the Authority reasoned solely on the basis that, if there are improved country circumstances, therefore there is no risk of harm. I think that submission does injustice to the way in which the Authority went about examining the information which, as I have said twice already, went both ways. It is well established, not only that it is a matter for the Authority as to which country information it accepts, but also that it is a matter for the Authority in this case to draw its own conclusions about the circumstances that pertain, and might reasonably pertain in the future, in the country of nationality of the putated refugee.
In my view, although the Authority has not expressly resolved the question of the frequent harassment reported in 2014 (see [33]) or the discrimination referred to in the Amnesty International report in [35], it did not need to do so. The Authority’s resolution came at the high level which, in my view, was open to it, even taking into account the information I have referred to. That is because its findings were essentially based upon the significant changes that had taken place since the end of the civil war, including but not limited to the change in government and the significant change in attitude of the new government to the minorities in the country, which included, amongst other things, a decrease in monitoring and the intention, at least, to implement recommendations which were made in a report to the United Nations Human Rights Council.
All of those things together, left it open on a proper understanding of the real chance test once contained within the definition of a refugee in Article 1A(2) of the Convention, now found in s.5J of the Act, to the conclusion at which the Authority arrived in [37]. For those reasons, I am not satisfied that the Authority erred in the way alleged by the applicant.
Conclusion
I am not satisfied that the Authority’s decision is otherwise affected by jurisdictional error and the application must be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 24 May 2018
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