Agf15 v Minister for Immigration
[2016] FCCA 318
•23 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGF15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 318 |
| Catchwords: MIGRATION – Protection visa – review of decision by Refugee Review Tribunal – whether the Tribunal considered the applicant’s circumstances to fear harm because of his religion, ethnicity and membership of social group – whether the Tribunal made illogical and inconsistent findings – whether the Tribunal considered irrelevant information – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 65, 414, 424A |
| NABE v Minister for Immigration & Multicultural Affairs (No. 2) (2004) 144 FCR 1 SZWBV v Minister for Immigration & Border Protection [2015] FCCA 1543 |
| Applicant: | AGF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 783 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 9 February 2016 |
| Date of Last Submission: | 9 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms U. Okereke-Fisher |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Solicitor for the Respondents: | Mr J. Pinder, Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 783 of 2015
| AGF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who arrived in Australia on 24 July 2012 and applied for a protection visa on 11 December 2012. That application was refused by a delegate of the first respondent and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 18 February 2015 the Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision. In order to succeed he must establish that the Tribunal’s decision was affected by jurisdictional error.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The grounds of review relied upon by the applicant changed from time to time during the course of proceedings and, at the hearing, he was given leave to rely upon the grounds as formulated in his written submissions. There are four such grounds, however, the principal ground relied upon by the applicant is that the Tribunal failed to consider an integer of the applicant’s claims to be a refugee. He argued that the Tribunal failed to consider whether he might face serious harm by reason of the combination of his religion, language and/or imputed Tamil ethnicity deriving from him being a Tamil-speaking Muslim.
The Tribunal’s obligation was to “review” the decision of the delegate: Migration Act1958 (Cth) s.414. That required the Tribunal to determine whether it was satisfied that the applicant satisfied the criteria for the grant of a protection visa: s.65. It was not in issue between the parties that the Tribunal falls into jurisdictional error if it fails to consider a claim which, if accepted, might mean that the applicant satisfies the relevant criteria for the grant of the visa: NABE v Minister for Immigration & Multicultural Affairs (No. 2) (2004) 144 FCR 1. What was in issue was whether the Tribunal had in fact fallen into such an error.
The determination of this ground requires an analysis of the claims actually made by the applicant and consideration of the findings made by the Tribunal.
Shortly after the applicant arrived in Australia he was interviewed by an officer of the Department of Immigration. In that interview he explained that he was seeking Australia’s protection because his father was very old, his family was poor because of the political situation and that he could not make a living. He also referred to the current government. In a subsequent interview, the applicant explained that there were two reasons for which he had left Sri Lanka. The first was that he feared being beaten by members of the United Peoples Freedom Alliance (“UPFA”), a political party, and secondly he claimed to fear harm because he was a Muslim.
In his protection visa application the applicant claimed that he was of Tamil ethnicity, a Muslim and that he had been persecuted by the Sinhalese for many years just because he was a Tamil Muslim. He said that as such he had been forced into undertaking propaganda work for a political party and that he was beaten whenever he refused. He claimed that in April 2012 Sinhalese people destroyed his mosque saying that Muslims do not belong in Sri Lanka. He also claimed that the Sinhalese treated Muslims as second-rate citizens and were again using his brother as a slave.
In extensive written submissions to the Tribunal dated 20 January 2015 the applicant’s solicitors claimed that there were five reasons for which the applicant faced harm upon return to Sri Lanka:
a)his Tamil ethnicity;
b)his religion (Muslim);
c)his membership of a particular social group (failed asylum seekers returned to Sri Lanka);
d)his imputed political opinion (opposition to the Sri Lankan Freedom Party [“SLFP”]); and
e)his imputed political opinion (support of the SLFP).
Although these claims were not framed by reference to the fact that the applicant spoke Tamil (rather than his ethnicity), there was some information cited in the submissions that did refer to the language spoken by him. The first of this information was as follows:
[55] In this report, the International Crisis Group indicate that:
Muslims and Tamils, particularly in the north and east, share many concerns and threats, ranging from the routine denial of their language rights as Tamil speakers, to land grabs by the politically connected and attacks on religious sites and identity. Both communities feel increasingly insecure in the face of the aggressive assertion of Sinhala and Buddhist identity. Even the powerful Muslim politicians in government have proven unable to offer adequate protection…
The second piece of information was contained in appendix 2 to the submissions, entitled “Persecution of Muslims in Sri Lanka”, which appeared at page 43 of the 81 page submission. That information was as follows:
The UNHCR, in their Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, observe that ‘[i]n any dealings with the police, the Tamil-speaking population [including Muslims] appears to be at a disadvantage’. Furthermore, some Muslims have expressed their concerns that they do not enjoy freedom of religious expression, with a ‘national values survey’ in Sri Lanka indicating that ‘a notable minority’ of Muslims feel unable to express religious opinions in public.
The UNHCR ultimately conclude that ‘members of the minority Tamil and, to a lesser extent, Muslim communities are reportedly more often subjected to arbitral detention, abductions or enforced disappearances.’
(References omitted)
On 28 January 2015, the Tribunal wrote to the applicant under s.424A of the Act. In response to that letter, the applicant’s solicitors wrote to the Tribunal on 11 February 2015. In that response they addressed the applicant’s religion and his political claims, amongst other things, but made no reference to the fact that the applicant was a Tamil speaker.
The Tribunal’s decision
The Tribunal made its decision on 18 February 2015. In its reasons, the Tribunal first dealt with the applicant’s claims concerning his activities with the SLFP. It found that the applicant had not been truthful in these claims and rejected them for that reason. It next turned to his ethnicity and, while it accepted that he spoke Tamil, it did not accept that he was ethnically Tamil. It said the following:
[33] The Tribunal discussed with the applicant at the hearing country information which suggests that Tamil-speaking Muslims (Moors) are not considered to be ethnically Tamil and would not be targeted in Sri Lanka for the same reasons as Tamils.
This passage shows that the Tribunal was aware of the existence of a group of Tamil speaking Muslims in Sri Lanka. It went on to set out further information concerning that group of people. For instance, it stated, at [35]:
Moors have long been seen as “enemies” of the Tamil separatist movement, and their support for the government during the civil war was reportedly considered treason by the LTTE. …
The Tribunal noted that the applicant agreed with the information that was put to him at the hearing and that he stated that his problems were political. The Tribunal noted that it put to him that it would not be assessing his claims as a Tamil and that the applicant agreed: [36]. It then turned to consider the applicant’s claim to fear harm as a Muslim.
In this respect, the Tribunal noted that it had considered country information in relation to the treatment of Muslims in Sri Lanka including the information set out in his solicitor’s submissions dated 20 January 2015: [39]. It then set out information from a report by the Department of Foreign Affairs and Trade stating that most Muslims speak Tamil as their first language and that, although Muslims sided with the Sinhalese government forces during the civil conflict, there had been a recent rise in religious tension between Muslims and the Sinhala-speaking Buddhist majority.
The Tribunal then rejected the applicant’s evidence about the harm that he claimed to have suffered personally as a result of his religion in Sri Lanka. The Tribunal concluded that in light of the country information, the lack of past serious harm and the ability of the applicant’s family to continue practising their religion in Sri Lanka, there was no real chance that the applicant would be subject to serious harm as a Muslim if he were to return to Sri Lanka now or in the reasonably foreseeable future: [42].
The Tribunal then considered the applicant’s claim that he would be harmed as a returnee because he had left illegally. It accepted that the applicant would be detained for questioning, security and character checks would be undertaken and that he would be remanded and charged with an offence because he had departed illegally. However, the Tribunal found that any period of detention would be short and that he would be bailed to appear in court at a future date and the prospect of him receiving a custodial sentence was remote. In short, it found that none of the consequences of his illegal departure would amount to serious harm within the meaning of the Act.
The Tribunal next considered the applicant’s claim that he would be ill-treated as a failed asylum seeker. It found that there was no evidence before it to support a finding that failed asylum seekers are, for that reason alone, imputed with a pro-LTTE opinion or suspected to have been involved in previously, or currently supporting the LTTE. For that reason, and having considered the applicant’s specific profile, the Tribunal found that there was no real chance that the applicant would be harmed as a failed asylum seeker if he was to return to Sri Lanka and more specifically, to his home town.
The Tribunal summarised its conclusions in relation to the applicant’s claim to be a refugee in the following paragraph:
[57] The Tribunal is not satisfied, when his circumstances and the evidence are considered both cumulatively and individually, that the evidence supports a conclusion that the applicant faces a real chance of being persecuted upon his return to Sri Lanka. Therefore, having considered the independent evidence and the applicant’s personal circumstances, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on arrival in Sri Lanka or upon return to his village because he is a Muslim, a Moor, a failed asylum seeker, because he left Sri Lanka illegally without proper documentation, because he is returning from Australia or for any other Convention reason.
The Tribunal then went on to deal with the criteria for a protection visa found in sub-s.36(2)(aa) of the Act. However, as the Tribunal’s findings in that respect were not the subject of any issue in these proceedings, it is only necessary to record that the Tribunal was not satisfied that the applicant met that criterion.
For those reasons the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a protection visa.
Consideration
First ground
As I have noted, the applicant’s first and principal ground is that the Tribunal did not consider whether he faced harm as a Tamil speaking Muslim by reason of a combination of his religion, language and/or imputed Tamil ethnicity deriving from speaking Tamil. The above outline of his claims made both to the Department and to the Tribunal shows that the applicant never expressly made this claim. That does not mean that the Tribunal did not have to consider the potential impact on the applicant of the fact that he was Tamil speaking and a Muslim. In NABE the Full Court said, at [61]:
… The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it. …
I would add that a failure to consider a claim is not merely a denial of procedural fairness, but a constructive failure to exercise jurisdiction.
However, in my view, it is clear that the Tribunal did deal with the possible potential impact that the applicant was a Tamil-speaking Muslim. First, it referred expressly to information concerning the potential of harm being suffered by Tamil-speaking Muslims in Sri Lanka. It referred to such people as “Moors” and set out information relating to that group of people at [32]-[36]. Secondly, it expressly stated that it had read and considered the country information referred to in the applicant’s solicitors’ extensive submissions. The only reference to the potential consequence of being Tamil speaking in any of the applicant’s case before the Tribunal, or elsewhere, was in those written submissions. Thirdly, in its conclusion at [57], it expressly referred to and rejected the applicant’s claim to fear harm as a Moor. The use of that word was no accident. It had been used by the Tribunal on a number of previous occasions in its reasons and, in particular, at [33] where it explained that what it meant by that word was “Tamil-speaking Muslims”.
Ms Okereke-Fisher, who appeared for the applicant, argued that, while the Tribunal’s use of the word “Moor” showed that it was aware of such a claim, its reasons did not otherwise indicate that it had dealt with it. I reject that argument. As the summary of the Tribunal’s reasoning set out above indicates, the Tribunal referred to several pieces of independent information concerning the treatment of Tamil-speaking Muslims as well as information to the effect that most Muslims were Tamil speaking. That fact, together with the Tribunal’s appreciation of the information contained in the applicant’s own submissions, sufficiently establish that the Tribunal was not really aware of, but in fact dealt with, any claim arising out of the applicants’ first language.
The fact that the Tribunal did not deal with this claim more extensively is readily explained by the way in which it arose. The Tribunal cannot be criticised for placing little emphasis on the claim when it was never expressly raised by the applicant who was, throughout the review, represented by lawyers. What is important is that the findings made by it dealt with the claim.
The first ground is rejected.
Second ground
The second ground is that the Tribunal failed to consider whether the applicant had a well-founded fear of persecution by the Sinhalese by reason of his ethnicity and religion. This ground focused upon the claim that the applicant feared harm from ordinary Sinhalese as opposed to the authorities in a Sinhalese majority state. On any reading of the Tribunal is reasons, however, it did not fail to deal with any such claim.
The applicant’s claim to fear harm from ordinary Sinhalese fell into two groups: first, that he had been forced in the past to work for the Sinhalese and beaten by them at every opportunity; and secondly that Sinhalese had attacked and destroyed the applicant’s local mosque saying that Muslims do not belong in Sri Lanka. The first of these groups was, in turn, based upon the applicant’s claim that he been forced to undertake election campaign work for the SLFP. The Tribunal rejected those claims because it did not believe the applicant’s evidence. In light of that conclusion, the Tribunal found that there was no real chance that the applicant would be subjected to forced labour if he were to return to Sri Lanka or that he would be harmed for any imputed political opinion.
To the extent that the second ground relies upon the applicant’s ethnicity, it will be recalled that the Tribunal did not accept the applicant’s statements that he was ethnically Tamil. That finding effectively dealt with all of the applicant’s claims based on ethnicity, regardless of the source of persecution.
In respect of the applicant’s religion, the Tribunal did not accept that the applicant had been harmed in the past. On the basis of country information concerning the treatment of Muslims the Tribunal also found that there was no real chance of harm for that reason on return to Sri Lanka.
The applicant argued that the country information relied upon by the Tribunal said nothing about the possibility of the applicant being further harassed by local Sinhalese. The submission relied upon the decision of this court in SZWBV v Minister for Immigration & Border Protection [2015] FCCA 1543. However, that case turned upon the information that was available to the Tribunal in that particular case. I was taken to no information to a similar effect in the material before the Court, and could see none from my own reading of that material. In any event, the Tribunal in this case referred to a DFAT country report updated on 16 February 2015 and the “relatively low number of incidents of violence” against Muslims which, in context, referred to violence by Sinhalese. Reliance on that information was not only open to the Tribunal, but indicated that it was assessing the broader claim made by the applicant of fear at the hands of ordinary Sinhalese citizens or residents of Sri Lanka.
For those reasons the second ground is rejected.
Third ground
The third ground is that the Tribunal erred by making findings without supporting evidence and findings which were illogical and inconsistent.
This ground focuses upon the Tribunal’s finding that the applicant was not ethnically Tamil. It was argued that this finding implied a further finding that the applicant had made a false statement in his statutory declaration. However, the argument continued that the Tribunal made an inconsistent finding when it stated that it was satisfied that the applicant was not making a deliberate attempt to falsely put forward claims on the basis of his Tamil ethnicity. With respect, those two findings were not inconsistent. Simply because a statement is wrong does not mean that it was deliberately so.
The applicant also argued under this ground that there was no evidence to support the Tribunal’s finding that his claim to be ethnically Tamil was based on a misunderstanding arising from the fact that the applicant spoke Tamil. It is hard to understand why the applicant raises this argument. The Tribunal was doing no more than drawing an inference that was favourable to the applicant. It could have, as the first part of the applicant’s argument suggests, drawn the inference that the applicant had deliberately falsified his ethnicity in order to fit within a well-established group of putative refugees from Sri Lanka. However it did not do so, but rather concluded that there had been a mistake. As such, the inference drawn by the Tribunal was not material to its decision and so any error that might have infected the decision, was not jurisdictional. In any event, I consider that it was open to the Tribunal on the material before it to draw the inference which it did. It may readily be inferred that a person who is Tamil-speaking claimed to be ethnically Tamil on that basis alone. The relevant logical connection between the two is that ethnically Tamil people might reasonably be expected to speak Tamil.
The third ground is rejected.
Fourth ground
The fourth ground is that the Tribunal erred by considering irrelevant reports and/or reports that were inconsistent with previous findings. The applicant argued that, in light of the Tribunal’s finding the applicant was not ethnically Tamil, it should not have considered information that related to Tamils, in particular Tamil returnees. The applicant said that in reaching the conclusion that he had no well-founded fear of persecution because of being a failed asylum seeker, the Tribunal relied upon country information with reports specific to Tamil returnees and refers to [52] – [54] of its reasons.
This ground is misconceived. While it is true that the Tribunal referred to certain information concerning Tamils, it specifically referred to that fact as a way of distinguishing that information from the applicant’s claims. Other information referred to by the Tribunal, such as that at [53], referred generically to Sri Lankans returning to Sri Lanka as failed asylum seekers. Or a proper understanding of the Tribunal’s reasons, this ground fails at a factual level.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 February 2016
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