ALI15 v Minister for Home Affairs

[2018] FCCA 1356

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI15 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1356

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Cases cited:

ALI15 v Minister for Immigration & Border Protection & Anor [2015] FCCA 1676

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: ALI15

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1015 of 2015

Judgment of: Judge Cameron

Hearing date: 23 May 2018

Date of Last Submission: 23 May 2018

Delivered at: Sydney

Delivered on: 31 May 2018

REPRESENTATION

Solicitors for the Applicant: Mr S. Hodges of Hodges Legal

Solicitors for the Respondents: Ms S. He of Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1015 of 2015

ALI15

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived by boat at the Cocos Islands in 2012. On 31 December 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity, his imputed political opinion and his membership of the particular social group of “young Tamils”. On 16 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. These proceedings are the second such proceedings relating to the applicant’s application before this Court.  A previous decision of this Court dated 17 June 2015 (ALI15 v Minister for Immigration & Border Protection & Anor [2015] FCCA 1676) dismissing the applicant’s application was set aside by consent in the Federal Court of Australia on 23 September 2015 and the matter remitted to this Court for re-determination of the applicant’s application for judicial review.

3. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. The applicant’s claims for protection were made in his entry interview, visa application, in a statutory declaration attached to his visa application dated 15 December 2012, at an interview with the delegate on 12 August 2013 and in written and oral submissions to the Tribunal.  As summarised by the Minister in his written submissions, the applicant relevantly made the following claims:

   4.      … He claimed to fear serious and/or significant harm for reasons of his Tamil ethnicity, membership of a particular social group of young Tamil males, imputed support of the LTTE, illegal departure from Sri Lanka and as a failed asylum seeker from the West. He also claimed to fear harm because he was the President of [a rural society] and [a] Hindu Temple, and has been threatened by the Criminal Investigation Department (CID) on many occasions. The applicant claimed he was persecuted and went to Singapore to study from April 2007 until October 2008. He claimed he was continually questioned and harassed by the CID on his return to Sri Lanka. He also claimed that he worked for the Sri Lankan government as a driver for [a Commissioner] from 2009 until he departed Sri Lanka illegally by boat. In March 2012, he was allegedly taken to a camp and interrogated about three other people who the applicant did not know. The applicant subsequently spent more time away from home and the CID turned their attention his brother, who fled to Australia.

2. The applicant also provided the following documents to the Tribunal:

   a)copies of undated letters signed by the secretary of a sport club attesting to the applicant’s involvement in the club;

   b)various photographs with handwritten annotations;

   c)a copy of the applicant’s results in a resort management course undertaken in Singapore; and

   d)a letter from a “Justice of Peace [X] Judicial District” dated 8 March 2015 in English that referred to the applicant leaving Sri Lanka in 2007 due to torture and threats against the Tamil community’.

3. In his written submissions to the Court in these proceedings the applicant provided a useful chronology of  relevant events based on his allegations which I now reproduce:

   8.1From April 2007 to October 2008, the applicant lived in Singapore where he studied hotel management.

   8.2.The applicant claimed that he left Sri Lanka for Singapore because he was arrested by the Karuna Group twice when he was participating in Pongu Tamil and Hero’s Day functions.

   8.3.The applicant claims to be the President of [a rural society] and [a] Hindu Temple.

   8.4.In early 2012, around 20 to 25 military officers came to the applicant’s village … and rounded up several young people.

   8.5.Upon his return to Sri Lanka from Singapore, in 2008, the applicant was interrogated by people from the security force.  During his interrogation, one of the members of the security force swung a plastic chair at the applicant.

   8.6.In March 2012, the applicant was abducted, interrogated and beaten by the Criminal Investigation Department (CID).

   8.7.In June 2012, the CID visited the applicant’s office whilst he was not there.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:

   12.…[The Tribunal] found that although he had been harassed and harmed by the CID in Sri Lanka in the past, the CID did not have a continuing interest in him after his return from Singapore in October 2008. It did not accept that he would have obtained a government job at the end of 2009/ beginning of 2010 and retain it until 2012 if he was of continuing adverse interest to the CID after his return from Singapore in October 2008.

   13. The Tribunal did not accept that the applicant was of interest to the CID because he was President [a rural society] or his role in the temple. It noted the applicant’s evidence that he was first interrogated in May 2012, even though he had allegedly held the role of President since the end of 2009. The Tribunal was troubled by the sudden and unexplained interest in the applicant because of a position he had held since the end of 2009.

   14.The Tribunal also did not accept that the applicant’s supporting documents were genuine and accordingly gave them no weight.

   15.Further, the Tribunal did not accept that the applicant had been President of the Temple or President of [a rural society] as the documents he provided in support of this claim were not credible. It also did not accept, therefore, that the security forces would have any interest in him for that reason.

   16.The Tribunal found that there was no real chance that the applicant would suffer serious harm on the basis of his ethnicity, membership in a particular social group comprised of young Tamil males, or imputed political views because his personal history did not support such claims. It noted that he was able to leave Sri Lanka and study in Singapore during the civil war and then obtain employment in a government job.

   17.The Tribunal assessed the country information but did not accept that it supported the applicant’s claim for protection in relation to him being a Tamil, and being a young Tamil male and imputed with a pro-LTTE or anti-government political opinion. The Tribunal at the hearing summarised for the applicant available country information regarding the treatment of failed asylum seekers, including Tamils. The Tribunal accepted that the applicant left Sri Lanka illegally and would return as a failed asylum seeker but found on the basis of the available country information that there was no reason to believe that the applicant would be specifically targeted.  It found that Sri Lanka’s illegal departure laws were laws of general application and that while the applicant may be detained for a short time, this detention did not amount to serious harm.

   18.Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or that there were substantial grounds for believing that as a consequence of the applicant being returned to Sri Lanka there was a real risk that he would suffer significant harm.

Proceedings in this Court

1. In his second amended application, the applicant alleged:

   1.[abandoned]

   2.     [abandoned]

   3.The Tribunal committed jurisdictional error by relying on minor inconsistencies to support its adverse credibility findings.

   4.The Tribunal committed jurisdictional error by making adverse credibility findings based on an incorrect interpretation of the applicant’s claims, assumptions of relevant facts and failure to properly deal with the applicant’s evidence.

   Particulars

   It is intended to give common particulars for both grounds still pressed as they overlap to a large extent.

   a.At paragraph 75 of its decision [the Tribunal] did not accept that the CID had a continuing interest in the applicant after his return from Singapore.  The reason explained in that paragraph was that his visa application does not refer to continuing CID interrogations, harassment or arrest.  The Tribunal noted that the applicant’s explanation given when this point was made (his lawyer told him to concentrate on recent events) but did not accept it.

   b.Contrary to the reason relied on by the Tribunal in rejecting this part of the claim:

   ·firstly, the applicant made it clear in his entry interview Court Book pages 48 and 49) that the harassment from the CID was constant.

   ·The SHEV statement appears at page 60. A fair reading, particularly paragraph 3, does not confine the CID harassment only to 2012.

   ·When speaking to the delegate, the applicant clearly said that his problems with the CID commenced about two weeks after his return from Singapore (Court Book Page 167).

   ·At Court Book page 195 there is another statement that problems with the CID started much earlier.

   ·A similar statement was made to the Tribunal at Court Book page 247 paragraph 6).

   c.The Tribunal made further contrary credibility findings based on assertions or assumptions, inter alia, as follows:

   ·(Page 247, paragraph 69) the Tribunal found that the applicant did not move from [X] to Jaffna because of problems with the CID.  No consideration was given to the possibility that the Commissioner, also a Tamil, faced the same harassment as the applicant.  There is no consideration that harassment of the applicant, as the driver, impacted on the Commissioner.  The finding by the Tribunal is based on an assumption with two parts.  The first is that the harassment of the applicant did not impact on the Commissioner.  The second is that the Commissioner, although a government appointee, was not also harassed in [X] and so moved his office.

   ·At Court Book page 248, paragraph 76, the Tribunal repeated the reasoning as to the lack of CID harassment in the period 2008 to 2012 (see (b) above).

   ·At Court Book page 249, paragraph 77, the Tribunal did not accept that the applicant would have what was found to be a government job if he was of interest to the CID.  At the end of the paragraph the Tribunal concludes its reasoning “…………Sri Lankan government of which the CID is an instrument”.

   ·The above findings and reasons are based on assumption and supposition not supported by the evidence.

Consideration

Issue 1 – Late making of claim?

1. As the first of the particulars makes clear, the applicant found fault with the Tribunal’s reasoning in para.75 of its decision record where it was said:

   The Tribunal does not accept that the CID had a continuing interest in the applicant from after his return from Singapore until he left in July 2012.  It does accept that he was interviewed after his return from Singapore in October 2008 and that he was injured.  However, the visa application claim does not refer to continuing CID interrogations, harassment or arrested [sic].  The Tribunal takes into account his explanation that his lawyer told him to refer to the most recent incidents and during the entry interview he did not have time and was told to talk only about recent issues, but does not accept those explanations.

2. The applicant argued that the Tribunal was wrong to find, in substance, that he had not detailed occasions of harassment which allegedly had occurred between 2008 and 2012 until his interview with the delegate on 12 August 2013, when he was asked about events subsequent to his 2008 questioning by the CID.  He submitted that the nature of his allegations over time indicated with sufficient clarity that his reference to specific events in 2012 served only as examples of a continuing course of harassment of which those events were, at the time they occurred, only the most recent manifestations. 

3. In that regard, the applicant referred to:

   a)his entry interview, which recorded his claims to have suffered occasions of mistreatment or harassment at the hands of Sri Lankan authorities in the period March to July 2012; and

   b)his statutory declaration declared on 15 December 2012, in which he referred to instances of harassment in March and June [sic] 2012.  It was argued that the applicant’s allegation in that declaration that “Armed groups and CID would interrogate young Tamils when they want”, which preceded his particular allegations concerning events in 2012, when read in context, indicated that the 2012 events were only elements of a continuum of harassment.  He submitted that that statement indicated that he had had problems before March 2012.

4. Referring to this material, the applicant submitted that he had not been silent about the CID’s continuing interest in him after his return from Singapore until he was interviewed by the delegate.

5. Although the applicant’s statements may be read, generously, as setting his own experiences in a general context of official harassment of the Sri Lankan Tamil population at the relevant time, the applicant alleged nothing specific in this connection in relation to his claim for protection and it was this silence which concerned the Tribunal.  It was concerned by the fact that neither the applicant’s visa application nor his entry interview referred to “continuing CID interrogations, harassment or [arrests]” which allegedly affected the applicant personally in the period 2008 to 2012.  It might also be noted that the applicant did not suggest in his entry interview or in his statutory declaration that his 2011 move to Jaffna in association with his job was in any way associated with the harassment which he subsequently alleged had occurred from 2008 to 2012.

6. I therefore do not conclude that the Tribunal relied on “inconsistencies to support its adverse credibility findings” because the matter in issue was the late making of factual allegations not inconsistencies, as the applicant’s solicitor conceded in addresses, and to characterise that as a minor matter and to seek to overturn the Tribunal’s decision on that account trespasses on the latter’s decision-making authority.  It is for the Tribunal to determine, in accordance with the law, what is and is not significant for the purposes of its reasoning.  In this regard, although the applicant’s written submissions raised questions of unreasonableness and illogicality in the Tribunal’s decision-making, it was neither unreasonable nor illogical of the Tribunal to observe that the applicant had not, until his departmental interview, made allegations of having been harassed in the period 2008 to 2012 or to discount the credibility of that late claim as a consequence.  Nor was it unreasonable or illogical of the Tribunal consequently to:

   … not accept that the CID had a continuing interest in the applicant from after his return from Singapore until he left in July 2012.

7. I further find, for the reasons given in relation to the Tribunal’s fact-finding, that the Tribunal did not make adverse credibility findings following a failure to deal properly with the applicant’s evidence. 

8. Finally, because I have concluded that the relevant findings of fact were not illogical or unreasonable, and so were open to the Tribunal, I find that the other elements of the fourth allegation, that the Tribunal’s decision was erroneous because it had misunderstood the applicant’s claims and had assumed facts, cannot be made out on the facts.

Issue 2 – Government job in Jaffna

1. The applicant’s job in Jaffna was raised in two contexts.

2. The first concerned the relocation of the job.  The applicant referred in that regard to para.76 of the Tribunal’s decision where it was said:

   At the end of the hearing, the representative submitted that the entry interview was part of the applicant’s claim, and referred specifically to pages 11, 12, 13 and 14.  At page 14, the interviewer asked the applicant why he left Sri Lanka.  The applicant said that he was the President of [a rural society] and the temple.  In March 2012, they came, took him to a camp and interrogated and beat him.  He said that they asked him about going abroad in 2007 and about the names of two or three people and then left him.  That he was asked about going abroad in 2007 was not otherwise mentioned in relation to that March 2012 incident.  Again, he did not mention a history of CID or armed group interrogations since his return from Singapore.  Those claims reinforce the Tribunal in not accepting the applicant’s claims about the March 2012 incident or that the CID continuously approached him and questioned him from about October 2008.

3. In this connection the applicant submitted that:

   a)without evidence, the Tribunal inferred that the applicant’s job as driver for a Commissioner moved to Jaffna for reasons other than the harassment which the applicant alleged he had suffered in his home city; and

   b)harassment of the applicant would have had an effect on the Commissioner for whom he was the driver and who was also of Tamil ethnicity.

4. It was also submitted:

   Well, given that the move was in 2011 and given that the tribunal’s only acceptance of CID harassment after 2012 commences in March, in my submission, the tribunal is effectively saying “we don’t accept any of your claims of harassment”.  And to make – to tie the change of job office location to a rejection of my client’s claims of harassment while he was a driver or before the move to Jaffna, in my submission, is a rejection of his evidence that he was harassed by the CID.  And the tribunal is not saying that.  It’s saying his move to Jaffna was for other reasons.

1. Those contentions were fanciful.  In para.53 of its reasons the Tribunal summarised evidence before it which was to the effect that the government office to which the applicant was attached moved to Jaffna and that the Commissioner moved with it, as did the applicant.  That summary gives no hint of the move being anything other than the result of an administrative decision made by a department of state that a particular office would be better located in one city rather than another.  It certainly does not suggest that the government office was moved to accommodate the applicant.  The applicant did not submit that the Tribunal’s summary of the evidence was inaccurate or incomplete. 

2. Importantly for the present argument, the Tribunal made no particular assessment of the reason for the office’s move and simply observed in para.69 of its reasons:

   As set out in the background section above, the applicant moved to Jaffna because the office moved and the Commissioner moved.  The impression his claims give is that he moved there because of the CID interrogation.  That was not the case.

3. Although the applicant implied that the Tribunal should have considered whether the Commissioner, as a Tamil, faced the same harassment as he claimed for himself, he did not suggest that he had ever made a submission to the Tribunal to that effect.  The Tribunal was not required to consider an argument (which was not a claim or an integer of a claim) which the applicant did not himself advance.  The same reasoning and conclusion applies to the applicant’s argument that the Tribunal should have considered whether the harassment the applicant claimed for himself impacted on the Commissioner.  In any event, the Tribunal rejected the claims that the applicant had been harassed after late 2008, and so there would have been no factual foundation for the consideration for which the applicant now belatedly contends in connection with this issue.

4. The second context in which the applicant’s job as a driver was raised concerned the fact that he had the job in the first place.  In that connection the applicant referred to para.77 of the Tribunal’s reasons where it was said:

   The Tribunal does not accept that he would have got a government job at the end of 2009, beginning of 2010, if CID had an adverse interest in him from his return from Singapore in October 2008, and that he would have been able to retain it until leaving of his own volition in July 2012.  The Tribunal takes into account the applicant’s explanation that CID is separate from the administration of government and that criminal convictions are taken into account in relation to government employment, but he had no such conviction, but CID is not involved [sic].  The Tribunal does not accept that explanation.  The applicant’s claims of harm that he fears CID will inflict upon him reflect an all-powerful agency which would be capable of preventing an individual being given or keeping a government job if it had an adverse interest in him. … the Tribunal does not accept that if CID wanted to harm the applicant as he claimed, that they would have permitted him to continue to work in what he acknowledged was a good job as an employee of the Sri Lankan government, of which the CID is an instrument.

5. The applicant alleged that those findings and reasons were based on assumption and supposition and unsupported by the evidence.  A simple reading of the paragraph demonstrates the fallaciousness of that contention.  It suffices to say that the paragraph identifies the material evidence on which the relevant conclusion is based, including the burden of the applicant’s own characterisation of the CID, and exposes the process of reasoning, relying on that evidence, which led to the conclusion, namely that if the CID was what the applicant said it was, and if he had been treated by the CID as badly as he claimed to have been, he would never have been given a government job in Sri Lanka.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date:       31 May 2018