AJV15 v Minister for Immigration

[2016] FCCA 505

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJV15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 505

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal failed to meet its obligations under s.425 of the Migration Act 1958 (Cth) – whether the Tribunal constructively failed to consider the applicant’s claim of being persecuted by pro-government militias in Sri Lanka – whether the Tribunal failed to consider the applicant’s claim that he would face persecution upon return to Sri Lanka – no jurisdictional error – application dismissed.

Legislation:

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

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152

Applicant: AJV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 944 of 2015

Judgment of: Judge Smith

Hearing date: 29 February 2016

Date of Last Submission: 29 February 2016

Delivered at: Sydney

Delivered on: 15 March 2016

REPRESENTATION

Counsel for the Applicant: Mr R. Chia

Counsel for the First Respondent: Mr G. Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 944 of 2015

AJV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 9 June 2012 and lodged an application for a protection visa on 14 January 2013. A delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 11 March 2015 the Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.

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

2. The applicant’s claims in support of his protection visa application were summarised by him in these proceedings as follows. The applicant claimed that in Sri Lanka one of his sisters had been forced to join the Tamil militia, Liberation Tigers of Tamil Eelam ("LTTE") and had been killed in a missile attack. He also claimed to have participated in Tamil awareness programs run by the LTTE and assisted them with their publicity activities, putting up notices and posters. The applicant claimed to have been detained and interrogated by the Sri Lankan authorities on several occasions on suspicion of LTTE involvement and that he had been harassed by members of pro-government paramilitary group, the Eelam People's Democratic Party ("EPDP"). He claimed to have a well-founded fear of persecution by reason of perceived association with the LTTE, his Tamil ethnicity and his actual or imputed political opinion due to his ethnicity and the fact that he had departed Sri Lanka illegally and sought the protection of Australia.

3. On 29 July 2013 a delegate of the Minister refused to grant the applicant a visa. In summary, the delegate did not accept that the applicant’s sister had been involved in the LTTE or that he was suspected of having any association with the LTTE due to his sister’s alleged involvement. Further, the delegate did not believe that the applicant was suspected of having any association with that organisation, because of his own involvement with it, or that he was of any adverse interest to the Sri Lankan authorities at all. The applicant applied to the Tribunal for review of this decision.

4. In support of his application for review, the applicant lodged a number of documents relating to the death of his sister, extensive written submissions, general country information and an amended statement of his claims. He also gave evidence at the hearing conducted over the course of two days on 12 December 2014 and 4 March 2015. It will be necessary in due course to return to some of the questions asked of the applicant by the Tribunal at that hearing and the answers given by the applicant to those questions.

5. The Tribunal made its decision on 11 March 2015 affirming the decision of the delegate.

The Tribunal’s decision

1. The Tribunal found that the applicant’s sister had been forcibly recruited into the LTTE and had been killed in 2008. It accepted that the applicant had been mistreated by the Sri Lankan authorities but did not accept that it amounted to persecution or that this history gave rise to a well-founded fear of persecution. Critically, the Tribunal found that if these past events were to cause problems for the applicant on his return, then his family would most likely have already been harmed, harassed or questioned in Sri Lanka. However, even though he had been in constant contact with his family, they did not report any such concerns to him and he did not claim that they had been subject to adverse interest by the authorities.

2. The Tribunal accepted that the applicant was extorted by a man from the EPDP, and was threatened. However, it found that the extortion incident was resolved because the applicant remained living where he was for several months after the alleged incident, and that the applicant had not been subjected to ‘frequent harassment’ as claimed.

3. The Tribunal also rejected the applicant’s claims that he would be subjected to harm for being a Tamil from the north of Sri Lanka, for being from a wealthy Tamil family, for being part of the Tamil diaspora, or for being a failed asylum seeker: [63].

4. The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason[2] and so did not satisfy the criterion in sub-s.36(2)(a) of the Migration Act 1958 (Cth). On the basis of its findings of fact, the Tribunal also found that the applicant did not meet the criterion in sub-s.36(2)(aa) of the Act.

   [2] Convention Relating to the Status of Refugees done at Geneva in 1951 as amended by the Protocol Relating to the Status of Refugees done at New York in 1967 [1954] ATS 5 and [1973] ATS 37.

Consideration

Ground 1: Breach of s.425 of the Migration Act

1. The Tribunal found that the applicant would not face any harm from the authorities on return to Sri Lanka for reason of his sister’s involvement with the LTTE for several reasons. Amongst those was the fact that his family, most of whom resided in the LTTE area during the war, had not been harmed, harassed or questioned. One of the reasons given by the Tribunal for that finding was that the only issues discussed between the applicant and his family during weekly contact was “normal talk”. That evidence was given by the applicant on the second day of the Tribunal hearing:

   Tribunal:How often do you talk to them?

   Interpreter:   Once a week, sometimes 2 days a week.

   Tribunal:And when was the last time you spoke to them?

   Interpreter:   Yesterday.

   Tribunal:And what do they talk about? What do you talk about with your family?

   Interpreter:   Just finding out how they are and how their health is, just normal talk

   Tribunal:Is that all?

   Interpreter:   Yes.

2. The applicant argues that the Tribunal breached s.425 of the Act by failing to draw to the applicant’s attention the possibility that it would use that evidence in order to reject his claim that he would be of adverse interest to the Sri Lankan authorities. Section 425 of the Act requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. That obligation is, in essence, to give an applicant for review sufficient opportunity to give evidence, or make submissions, about the issues that might be determinative in relation to the decision under review.

3. The applicant relied upon the following passage from the judgment of the High Court in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at 166 [47]:

   … But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

4. In that case the Court noted that the obligation on the Tribunal was to review the decision of the delegate and so the point at which to begin the identification of issues arising in relation to the decision under review would usually be the reasons given for that decision: SZBEL at 163 [35]. In this case, the delegate rejected the applicant’s claims for a number of reasons. Amongst those was that the applicant’s family continued to reside in his native village without any incident and that none of his family members had been interrogated or detained by the authorities.

5. The fact that all of the applicant’s factual claims were rejected by the delegate suggests that each of those claims, and whether they would be accepted, were obviously issues arising in relation to the decision under review. In light of that, it cannot be said that the applicant was denied any opportunity to address those issues. Counsel for the applicant argued that the issues before the Tribunal were narrower than those identified from the reasons of the delegate. I disagree. The delegate had based her decision on a rejection of the applicant’s factual claims and specifically identified the lack of harm suffered by the applicant’s family as a reason for that rejection. The Tribunal did no more. That is so even if it had an additional reason for arriving at the same conclusion, namely, the lack of comment about any harm in telephone conversations with the applicant’s family. For that reason alone this ground fails.

6. In any event, the Tribunal plainly raised the issue at the hearing. It said (transcript [43]-[44]):

   … I note that you lived in a SLA area for many years without real problem; You haven’t claimed that your family has had any problems in [name of town]; and you have done nothing in Australia that may bring you to the adverse attention of the authorities on return, and we just talked about illegal departure. …

7. In response to that comment, the applicant raised a new claim saying that his family had been rounded up by the authorities in 2014. When the Tribunal noted that this was a new claim, the applicant responded that he had never been asked the question before.

8. For that additional reason the applicant was on notice that an issue on the review included the fact that his family had never been harassed. The first ground is rejected.

Ground 2: Constructive failure to consider a claim

1. Part of the applicant’s claims was that he was vulnerable to robbery and extortion from pro-government militia including the EPDP. In his written statement of 10 December 2014, the applicant said that in July or August 2009 he was visited by a member of the EPDP and told that they knew his sister was LTTE and if he wanted to avoid problems he had to cooperate and provide money to the party’s fund. He said that, although he was asked for one Lakh, he paid more than 25,000 Rupees and was then frequently harassed.

2. The Tribunal accepted that the applicant was subject to an extortion attempt in mid-2009 by a man claiming to be from the EPDP but it did not accept that the applicant was subject to frequent harassment after that attempt. It then said:

   [48]… However, given the applicant remained living and working in [name of town] for approximately 6 or 7 months after this incident, I am satisfied the extortion attempt was resolved by the applicant, with the assistance of his employer. I am also satisfied the matter was finally resolved prior to the applicant departing Sri Lanka. The Tribunal is therefore not satisfied the applicant has a real chance of being harmed for this reason in Sri Lanka.

3. The applicant argues that the Tribunal did not make any finding that there would be no further extortion attempts upon the applicant and did not consider the consequences if there were. I disagree. Although the Tribunal did not say in so many words that there would be no further extortion, that is clearly what it meant in the passage quoted above. It is important to note that the Tribunal rejected two critical aspects of the claim: first, that the threat behind the extortion was a report to the Sri Lankan authorities that the applicant’s sister was LTTE; and secondly, that the applicant was subject to frequent harassment after paying the amount. In light of that, the Tribunal’s findings revealed that it considered the extortion attempt a once off that would not recur. On that understanding of the Tribunal’s reasons, the ground must fail.

Ground 3: Failure to consider a claim-absence of state protection

1. The applicant claimed that he might be targeted upon return to Sri Lanka because he was a member of a wealthy family. The Tribunal was not satisfied that “wealthy Tamils have a real chance of being targeted in the north of Sri Lanka” and, further, that the applicant’s profile, including family history, would not increase his risk of being targeted “for that reason” on return.

2. The applicant argued that the Tribunal’s conclusions were limited to rejecting the Convention nexus in the claim. This meant, he said, that the Tribunal ought to have considered his claim that he would not be protected by the authorities in Sri Lanka because he was a Tamil but that it failed to do so. In my view, this argument is based upon a misreading of the Tribunal’s reasons. The applicant’s claim was not that he faced harm in the form of robbery or extortion as a member of the general public. Rather, his claim was that such harm would only arise because he would be perceived to be wealthy. Thus, when the Tribunal found, at [54], that the applicant would not be harmed “for that reason” it was rejecting the possibility of any harm and not simply the motivation for the harm. Once that is understood, the Tribunal was not obliged to go on to consider whether the authorities would refuse to afford protection to the applicant and, if so, the reasons for that refusal. For that reason this ground is rejected.

Conclusion

1. There is no jurisdictional error affecting the Tribunal’s decision. The application must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 15 March 2016