AHI15 v Minister for Immigration

[2015] FCCA 2601

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHI15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2601

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error found – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: AHI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 266 of 2015

Judgment of: Judge Vasta

Hearing date: 3 September 2015

Date of Last Submission: 3 September 2015

Delivered at: Brisbane

Delivered on: 3 September 2015

REPRESENTATION

Counsel for the Applicant: Mr S. Barataraj

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 25 March 2015 be dismissed.

2. That the Applicant pay the costs of the First Respondent in the amount of $5,800.00.

3. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 266 of 2015

AHI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed in this Court on 23 March 2015 the Applicant, AHI15, asks this Court to review the decision of the then Refugee Review Tribunal that was made on 5 March 2015. 

2. That decision affirmed the decision of the delegate of the Minister to not grant a protection visa to the Applicant. 

3. It seems from the chronology that the Applicant was from a wealthy family.  His father is an engineer and the family, having some 20 acres of land, runs a rice farm. 

4. The applicant became interested in politics in his native Sri Lanka.  There are other matters that I will come to, but he apparently went to a conference for his political party and then immediately left Sri Lanka on 30 May 2012, arriving as an unauthorised maritime arrival in Australia on 20 June 2012. 

5. He applied for a protection visa on 14 November 2012.

6. The delegate refused to grant the visa on 12 September 2013.

7. The applicant lodged an application for a review on 24 September 2013 with the Tribunal and the Tribunal heard the matter on 17 February 2015 giving the decision on 5 March 2015. 

8. The question before the Tribunal was – does Australia have protection obligations to the applicant under the Refugee Convention and, if not, then does Australia have protection obligations under the complementary protection criterion?

9. The Tribunal in its decision did list a further issue in the case, namely, is the Applicant credible, however, as has come from this hearing, that issue is really a side issue. It is only an issue as it relates to the answering of the question as to whether Australia has protection obligations under the Refugee Convention to the Applicant or, alternatively, does Australia have protection obligations under complementary protection criterion?

10. The Applicant has given evidence to the delegate, and to the Tribunal, to the effect that, because he is a Tamil, he grew up he living in constant fear.  This was because of the different political groups around him and that the military would constantly harass Tamils in the area. 

11. He left Sri Lanka in 2003 and went to work in Qatar, returning five years later as there was no more work.  For the next two years he worked as a farmer. 

12. He told the delegate and the Tribunal that he started to work for a Mr Sinifambi who was running as a member of parliament (MP) for the Tamil National Alliance Group.  He said that he met Mr Sinifambi in a temple and immediately respected him.  He agreed with his policies and he then assisted the campaign by doorknocking, putting up flyers and attending party gatherings.  He said that because of these things there were threats and beatings that were perpetrated upon him.

13. He said that, on one particular occasion, he was detained, tied up, beaten fairly severely, and eventually allowed to go.  He was able to leave either on a motorbike or his bicycle.  He was able to get home.  He told no one of the beating or the kidnapping.  Instead he claimed that there were no physical marks or bruises because of the beating and he certainly did not tell his parents.  He said that he did tell Mr Sinifambi who told him that he, Mr Sinifambi, had no authority to do anything about it, and he simply kept working for Mr Sinifambi at that time.

14. As I say he attended a Tamil national conference, he says, in May 2012, with 600 or more people, leaving Sri Lanka some three days later.  He said that after he left he was informed that people came to his home asking about him and his mother had told them that he, the Applicant, had gone to Qatar. 

15. For a number of reasons the Tribunal did not find that the Applicant was a credible witness. 

16. There were a number of findings by the Tribunal about various aspects of the evidence, however, the main duty of the Tribunal, whilst it was to assess what the applicant had said and its truthfulness, was really to consider whether Australia has protection obligations under the Convention and, if not, do they have obligations under the complementary provisions.

17. It was instructive that the Tribunal did look thoroughly at the question of whether Australia had protection obligations under the Refugee Convention.  That is the heading in the decision from paragraph 47. 

18. The Tribunal considered everything that the Applicant had said, had listened to the representative of the applicant, and looked at the country information.  That information came from other sources, including Department of Foreign Affairs and Trade (“DFAT”) reports, the United Nations Human Rights Commission (“UNHRC”) Guidelines, the reports from the United Kingdom, other country information, and, it seems, reports from Canada or, at least, confirmatory information from Canada.

19. What the Tribunal did was to go through and look at all the claims that the Applicant had made which would put him in the category of risk.

20. In the end what the Tribunal found was that the Applicant was not as high profile as he was making out, and would not be at a level where he would come to the negative attention of those persons who would be wanting to commit violence and to harm persons of the Applicant's ethnic persuasion. 

21. What else was in the Tribunal's mind was that the new President of Sri Lanka had set a new agenda, which included responding to all ethnicities, pledging reconciliation, justice and equality, reducing corruption and establishing a task force on reconciliation. 

22. For those reasons the Tribunal was of the view that the applicant did not face a real chance of serious harm because of his support for the Tamil National Alliance (“TNA”), or his political activity, or his political opinion. 

23. The Tribunal did not accept that he faced a real chance of being harmed upon return to Sri Lanka in the foreseeable future for reasons of his support, association, activity or political opinion which related to the TNA.

24. The Tribunal looked at the fact of just his being an ethnic Tamil, and looked through the reports from both DFAT, and the United States State Department, a body called Freedom from Torture and the UK Upper Tribunal. 

25. In the end the Tribunal did not accept that, prior to his coming to Australia, the applicant had been assaulted, detained or harmed by the Army, SDF or any authorities, or that anyone was looking for him.  So they did not accept that he was at risk of being recognised by his attackers as claimed.

26. The Tribunal did not accept either that his circumstances take him outside the general situation of being Tamil due to his identification by authorities in the past.  The Tribunal did not accept that he had been so identified or targeted in the past.  The Tribunal, relying upon the country information, found that Tamils do not face a real chance of suffering serious harm solely on account of their ethnicity from the Sri Lankan authorities, or because they are Tamils from the east or from formerly Liberation Tigers of Tamil Eelam (“LTTE”) controlled areas.

27. On the basis of country information that the situation for Tamils has changed considerably since the end of the Sri Lankan civil war, and having considered the Applicant's circumstances, the Tribunal was not satisfied that the Applicant faced more than a speculative risk and, therefore, not a real chance of serious harm because he is a Tamil from the east or a young Tamil male. 

28. The Tribunal did not accept that there would be harm because of his coming to the attention of the LTTE. 

29. The Tribunal extensively looked at the fact that he may be referred to as “a failed asylum seeker” and be brought back to Sri Lanka because leaving Sri Lanka illegally is an offence.

30. The Tribunal looked at country information saying that the DFAT notes that there have been thousands of asylum seekers returned to Sri Lanka since 2009 and Australia, the United States, Canada, the United Kingdom and European countries.  They note that there has been relatively few allegations of mistreatment which have been verified.

31. The Tribunal accepted that the situation was different from returnees who have association with LTTE, real or perceived, or were highly politically active, or have outstanding warrants, but the Tribunal did not accept that all asylum seekers are imputed with anti-government or pro‑LTTE political opinion.  As discussed by the Tribunal, they rejected the Applicant's claim of being so politically aligned, but, as I say, this was but one of the findings.

32. In the end the Tribunal looked at what has been the main experience of people returning to Sri Lanka and being charged with offending the law not permitting illegal departure from Sri Lanka. The Tribunal found that most people are given fines, though they did note that one person was fined a significant sum of 50,000 rupees.  They found that there may be a chance that the Applicant is detained upon his return, but his detention would, if it does happen, be very short, and certainly if he is detained it would be for nothing more than two weeks until he is bailed or dealt with.

33. So, having regard to that, and looking at the foreseeable future, the Tribunal was not satisfied that the Applicant faces a real chance of serious harm upon return to Sri Lanka due to his race, political opinion, membership of a particular social group, or unlawful departure from Sri Lanka. 

34. The Tribunal was not satisfied that the Applicant has a well‑founded fear of persecution for any Convention reason, now or in the reasonably foreseeable future, if he returns to Sri Lanka.

35. The Tribunal then considered whether the Complementary Protection criterion had been met. 

36. The Tribunal did not accept the Applicant's claims about the authorities looking for him, having been assaulted or threatened or having money taken from him.  The Tribunal did not accept that the TNA support put him at risk of significant harm, now or in the future, and did not accept that he faced any real risk of significant harm in this regard in the future. 

37. They also looked at discrimination because of the fact that he was a Tamil and looked at the fact of his illegal departure.

38. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Migration Act 1958(Cth). 

39. The Tribunal was not satisfied specifically that there was a real risk that the Applicant would be arbitrarily deprived of his life, that the death penalty would be carried out on him, that he would be subjected to torture, or that he would be subject to cruel or inhuman treatment, or punishment, or degrading treatment or punishment.

40. So, in making those findings, the Tribunal affirmed the decision of the Delegate not to grant the applicant a protection visa. 

41. The Applicant in this Court had a number of grounds upon which he said that the Tribunal had fallen into error.  Those grounds were amended in the originating application that was filed on 30 June 2015.  They read: 

    “1. The Minister erred in law in not following the proper procedures in determination of the application made by the Applicant.”

    “Particulars (inter alia)

    (a) The Tribunal used one alleged phrase of the Applicant (written on his behalf by the solicitor in the written report) namely ‘kept a distance’ to nullify all the statements of the Applicant that appeared to be at odds to this phrase.  This was repeated by the Tribunal.  The Tribunal failed to ask the Applicant what he meant with the phrase, as this phrase can have several meanings, one of which could be construed as kept at  distance as far as the authorities are concerned, not to mean completely broken up with the political party.  This could have clarified the position.”

42. With respect to that ground, it seems that whilst the Tribunal talked about that phrase that was not the turning point of their findings on credibility. 

43. It was simply one of a number of matters that the Applicant had spoken of to which the Tribunal did not accept his evidence.  In looking at that ground, one is looking at one particular aspect of the Tribunal's decision.  The fact is, with regard to these matters, it is for the Court to be satisfied that there was jurisdictional error that obtained in the Tribunal coming to its decision that will ultimately determine whether a review is successful or not.

44. This aspect of the phrase "kept at a distance" is one of those matters that the Tribunal looked at as to whether they were satisfied with the credibility.  The fact is whether they were satisfied with the credibility is a matter that only goes to whether or not the Tribunal ought to have been satisfied overall that the Refugee Convention criteria were not met and the complementary criteria were not met.

45. What this ground does is start to look at one particular aspect of the Tribunal's decision.

46. It is, in effect, a merits review of what the Tribunal had found, rather than looking at whether there had been jurisdictional error.

47. In my view, this ground does not show that there has been any jurisdictional error.

48. The second ground is as follows:

    “2. The Tribunal erred in law by taking into consideration information not relevant to the applicant's claim”

    “Particulars: 

    (a)The fact that the Applicant was able to travel freely before the time when the applicant became associated with a political party has been used to indicate that the Applicant was never in a position of persecution and therefore all his subsequent statements lack credibility.  The same applied for his ability to get a passport.  The Tribunal failed to take into account the persecution occurred when the Applicant is identified, which only happens in the area the applicant is active in politics.  Addition of several unrelated events were used to reduce the credibility of the Applicant.”

49. This ground suffers from the same defect.  That is, that it is cavilling with what it is that the Tribunal has done in finding credibility.  The matter of him being able to move freely beforehand is simply one of a number of matters.  If one were to liken it to the way in which circumstantial evidence is treated by the Courts, then it is appropriate to examine the way in which juries are told to look at circumstantial evidence.  It is said to juries that there are many strands that make up a rope.  It is the combined force of those many strands that can hold up a weight, or, in this case, go to making the finding of lack of credibility. 

50. One strand in itself may be insufficient to come to the conclusion, but in this case there were many, many strands that have that cumulative effect. Whilst one may be able to, in a merits review, look at two, three or four strands and come to any particular conclusion, the fact is that the Tribunal has used the cumulative aspect of all of those matters. 

51. In looking at that one particular matter of the freedom of movement, it may be quite weak, but when it is added to the other matters it does just become one of those strands that has justified the finding of the Tribunal that they do not accept the applicant as a credible witness. 

52. For this reason, this ground is, again, an impermissible merits review, and I do not see that there is any jurisdictional error.

53. The third ground was that

    “3. The Minister erred in not taking into consideration relevant information in making the decision.”

    Particulars inter alia:

    (a) The Applicant provided details of several country information reports that supported the claims of the Applicant.  It is important that this information to be co related with the experience of the Applicant with respect to the persecution of supporters of opposite political parties. 

    (b) There are several paramilitary groups (including Tamil groups) and political thugs that detain, threaten or attack the members of those associating with the opposition parties and the claims of the Applicant are plausible.

    (c)  While the original letter from the MP was not accepted by the Delegate another letter that clarified the mistakes were provided by the MP.  The errors could have been typo errors as MP’s do not normally type their letters, and signed by the MP overlooking the errors.  MPs generally do not write supporting letters easily and there is no justifiable reason to reject the letter as not authentic.  Further telephone numbers are given which could have clarified the position.  This letter is critical to the application.”

54. With regard to this latter aspect, I will talk a little later.  In the end, to look at what it is that the Tribunal takes into account, and does not take into account, are really questions that, again, go to the merits.

55. The fact that the Tribunal emphasises one thing and does not emphasise another thing, or does not talk about one aspect and should have talked about another, is really neither here nor there when trying to establish whether there has been jurisdictional error.  The fact is that, as the Respondent says, this is a disagreement with the weight being given to the particular claims or documents. 

56. It is not a matter that the Court can consider, as part of its jurisdiction, as an error. 

57. For that reason there is no jurisdictional error.

58. What I do wish to say about that also is this, that at the start of this matter counsel for the applicant said this, and gave it to me in a document that he headed:

    “Oral Submissions For The Applicant.

    “The general criteria delegate of the Minister and the Tribunal generally to define the applicant as either a genuine refugee or an economic migrant in order to approve or reject the application.”

59. That really is not the question at all.  The Applicant, in his submissions, on a number of occasions went through the evidence to show that there was plenty of evidence of violence, and evidence of violence that targeted Tamils, and that the Applicant is a Tamil. 

60. What the Counsel for the Applicant was attempting to show was that in 2012, when the Applicant got on a boat and left Sri Lanka he was in genuine fear.  The country information was, at that time (2012), that there was strife for people of the Tamil ethnicity. However, it is not a matter to show that at the time that he left, the applicant was scared and, having proved that, a visa should issue. 

61. The question is whether the Refugee Convention criterion is met or, if not, whether the complementary protection criterion is met.  Those matters will be met according to the Tribunal's assessment of the Applicant's evidence together with any country information.  The fact is that the country information that the Applicant relies on is hopelessly out of date. 

62. The country information that the Tribunal had before it was relatively recent and it came from a number of government sources. 

63. Whilst it has been the subject of much criticism, (such as that DFAT may not know everything about what the true situation is) there has been no evidence to support this criticism.

1. The DFAT information before the Tribunal was such that it was entitled to say that things are a lot different in 2014 and 2015, when this application was heard, than they were in 2012.  The question is not whether the Applicant would have suffered harm if he was sent back in 2012.  It is whether he would suffer harm if sent back now.

2. The country information is that things have changed considerably since 2012.

3. So whether or not the Applicant was in fear, and whether it was a genuine attempt to leave Sri Lanka to escape persecution in 2012, does not assist the Tribunal in coming to its decision as to whether the obligations have been met. There may well have been a misapprehension as to what it was that was needed to be shown both before the Tribunal and in this Court. 

4. The question is not whether he is a genuine refugee or an economic refugee.  It is whether or not the criterion has been fulfilled.

5. Getting back to the substance of the ground, the question of whether the letter from the MP is genuine is a matter for the Tribunal in their fact finding capacity.  It is not as if the letter was not considered.  The letter was considered, and the flaws in the letter and the circumstances were such that the Tribunal ended up putting no weight upon it. 

6. That is a different situation to a Tribunal totally disregarding the letter. 

7. There were reasons, and well-reasoned reasons, why the Tribunal did not accept that letter, but, as I say, even looking at that letter it was just one part of the many things that the Tribunal found would give the cumulative effect of them not accepting the applicant as a witness of truth.

8. With regard to the fourth ground, it was headed:

   “Complementary Protection Criterion

   The Tribunal had not provided definite or substantive reasons to determine that the Applicants do not qualify under the Complementary Protection criteria.  The standard established by the Tribunal was unsatisfactorily rigid and high.” 

9. That is a complaint that in some way the Tribunal has misunderstood what the complementary protection provisions entail. 

10. When one looks at the decision of the Tribunal the complementary protection criterion was discussed very thoroughly from paragraphs 96 through to 107. 

11. There really, on my examination, does not seem to be any error in law as to how they have determined what the provisions are.  The fact is that they find that the Applicant does not meet the criteria.  Whether one says that that is unduly harsh, or the standard is high, is really not to the point. 

12. The Tribunal has looked at the law, has looked at the proper construction of the legislation, and has given its determination. 

13. That determination, that finding, was open on the evidence before the Tribunal. 

14. To question whether it was high, or the standard was rigid, is really not to the point.  Again, what that the ground does is that in claiming that the standard used is unsatisfactorily rigid or high is really again a merits review and a disagreement with that finding on the merits. 

15. That is not what I am here for.  I am here to see whether that finding was open on the evidence. 

16. Therefore, I do not see that there was a jurisdictional error.

17. I do not find that there is any jurisdictional error that obtains to this decision and I dismiss the application with costs in the standard figure $5,800.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 25 September 2015