ALO15 v Minister for Immigration

[2017] FCCA 722

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALO15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 722

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – whether Tribunal considered the future risk to the applicant constituted by his nephew being an LTTE combatant.

Applicant: ALO15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 773 of 2015

Judgment of: Judge Riley

Hearing date: 7 February 2017

Date of last submission: 7 February 2017

Delivered at: Melbourne

Delivered on: 13 April 2017

REPRESENTATION

Counsel for the applicant: Anthony Krohn

Solicitors for the applicant: Ambi Associates

Advocate for the first respondent: David Brown

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The decision of the Refugee Review Tribunal made on 22 March 2015 in matter number 1400090 be set aside.

2. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

3. The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 773 of 2015

ALO15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

The applicant’s claims

1. The applicant claimed that:

   a)he is a Tamil Christian from Sri Lanka;

   b)his nephew had been a combatant with the Liberation Tigers of Tamil Eelam (“LTTE”), from 1999 until 2000, when he was injured and left the LTTE;

   c)the applicant’s nephew continued to live in Sri Lanka;

   d)the applicant and his wife and children, who remained in Sri Lanka, had lived in an LTTE controlled area;

   e)they paid 5% of their income to the LTTE;

   f)they were displaced in August 2008 and captured by the Sri Lankan Army (“SLA”) on 17 May 2009;

   g)they were then placed in a camp;

   h)they were released from the camp on 2 July 2010;

   i)the applicant then ran a clothing shop;

   j)he reported an SLA officer to his commander for refusing to pay for goods;

   k)the SLA officer then threatened the applicant each week or fortnight;

   l)opposite the applicant’s shop, there was an LTTE cemetery;

   m)the applicant was questioned by the SLA about the identity of the people who lit candles for deceased members of the LTTE who visited the cemetery;

   n)the applicant was unable to identify anyone who visited the cemetery;

   o)the SLA threatened him with a beating;

   p)the SLA told him that if anyone else attended the cemetery and left flowers, he would be arrested and beaten;

   q)the applicant arrived in Australia by boat on 8 August 2012 fearing persecution;

   r)his wife was questioned by the SLA about visitors to the cemetery in October 2014; and

   s)she closed the shop.

The Tribunal’s reasons

1. The Tribunal found that:

   a)the applicant was a Tamil Christian from Sri Lanka;

   b)his nephew had been a member of the LTTE;

   c)the applicant was not a member of the LTTE;

   d)the applicant had been a displaced person and placed in a camp from May 2009 until July 2010;

   e)the applicant’s release from the camp in July 2010 indicated that he was of no ongoing interest to the authorities at that time, notwithstanding his residence in an LTTE controlled area during the conflict, his contribution of 5% of his income to the LTTE and his nephew having been a combatant with the LTTE;

   f)the cemetery opposite the applicant’s shop was destroyed by the SLA in 2010;

   g)the applicant may have been questioned by the SLA about people visiting the cemetery;

   h)however, it was implausible that the SLA would have started to question the applicant two years after the cemetery was destroyed and 18 months after he started his shop and then questioned the applicant’s wife in October 2014 after a gap of two and a half years;

   i)the SLA officer threatened the applicant because he reported the SLA officer to his supervisor;

   j)however, the threats did not occur weekly or fortnightly;

   k)those threats were not the reason the applicant left Sri Lanka; and

   l)there was not a real chance the SLA officer would seek to harm the applicant in the future.

Ground 1

1. The first ground of review in the application filed on 14 April 2015 and amended on 3 January 2017 is:

   The Tribunal fell into jurisdictional error in that it failed to consider relevant considerations, whether relevant material or an integer of the claim or a material question of fact.

   Particulars

   The Tribunal accepted that the applicant had a nephew who was formerly a member of the LTTE. (Court Book (“CB”) 214, Decision [36]). The Tribunal noted the existence of the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, dated 21 December 2012, but failed to consider or have regard to material in those Guidelines relating to the risk to the applicant as a person with family links to a former LTTE combatant or cadre.

   (See CB 215, Decision [40]-[42].)

2. This ground concerned paragraphs 40 to 42 of the Tribunal’s reasons for decision where it said:

   40The Tribunal considers that the applicant would not have been released from the IDP camp in July 2010 unless the Sri Lankan authorities were satisfied that he was not a security threat. The Tribunal considers that the applicant’s release from the IDP camp after undergoing the screening processes which are widely reported to have been employed in those camps indicates that he was of no ongoing interest to the Sri Lankan authorities at that time despite the fact that he had lived in an LTTE controlled area during the conflict, that his nephew had been an LTTE combatant and that the applicant himself had interacted with and provided limited support for the LTTE in the manner that all residents of LTTE controlled areas were required to do at that time.

   41The UK Home Office reports that since 2009 the Sri Lankan government’s security policy has become increasingly sophisticated and is based on intelligence and the comprehensive surveillance of its Tamil citizens, as well as the monitoring of the Tamil diaspora. It assesses that being of Tamil ethnicity does not in itself warrant international protection, and that the absence of any anti-government activity pre and post flight will mean that any enquiry made by the authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk. The Tribunal has found that the applicant has not in the past been a member of the LTTE, that he has had only those interactions with the LTTE and its members that all residents of an LTTE controlled area. It is not suggested that the applicant has been involved in separatist activities since departing Sri Lanka.

   42Nor does the applicant otherwise come within the categories of persons identified by UNHCR as being in need of protection in its 2012 Guidelines or the categories of people identified by the UK Upper Tribunal as being at real risk of persecution or serious harm on return to Sri Lanka.[28] In such circumstances the Tribunal does not accept that the applicant’s Tamil ethnicity, his residence in an LTTE controlled area or his past interactions with the LTTE will mean that he will be imputed to be a sympathiser or supporter of the LTTE or opponent of the Sri Lankan government if he returns to Sri Lanka, now or in the foreseeable future, nor that there is a real chance that he will be targeted for harm on that basis. (some citations omitted) (emphasis added)

   [28] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (21 December 2012); UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 1.3.7  

3. The applicant noted that the Tribunal had accepted that the UNHCR 2012 Guidelines were an important part of the material on which it would rely.  However, the applicant submitted, the Tribunal failed to have regard to those guidelines in that it failed to consider the risk to the applicant at the time of the Tribunal’s decision of the applicant’s nephew having been an LTTE combatant.

4. The Minister submitted that the word “otherwise” in paragraph 42 of the Tribunal’s reasons for decision referred to everything that had gone before, including the assessment of the applicant’s nephew’s role as an LTTE combatant.

5. The applicant accepted that the Tribunal had previously dealt with the impact of the applicant’s nephew being an LTTE combatant, but said the Tribunal had only considered the impact of that issue at the time of the applicant’s release from the camp in 2010.  The applicant said that the UNHCR 2012 Guidelines were from a later time, being 21 December 2012, and the Tribunal should have considered the risk facing the applicant, as at the date of decision, being 22 March 2015, associated with the applicant’s nephew having been an LTTE combatant.

6. The Minister argued that the Tribunal had found in paragraph 16 of its reasons for decision that, since 2010, things in Sri Lanka had improved.  The Minister argued that the finding that the applicant was of no interest to the authorities in 2010, notwithstanding his nephew having been an LTTE combatant, meant that the applicant would have been of even less interest to the authorities on 22 March 2015, when the Tribunal made its decision.

7. The applicant said that the “finding” in paragraph 16 was not a finding, but a statement made by the Tribunal during the hearing about the situation facing Tamils generally, as opposed to those whose relatives were LTTE combatants.  Moreover, the applicant submitted that there was evidence before the Tribunal that the situation in Sri Lanka had not improved at all for those with particular profiles but had in fact become worse.

8. It is implicit in paragraph 42 of the Tribunal’s reasons for decision that it accepted that those who fell within the UNHCR 2012 Guidelines were in need of protection.  The Tribunal said:

   Nor does the applicant otherwise come within the categories of persons identified by UNHCR as being in need of protection in its 2012 Guidelines …

9. The Tribunal did not suggest, expressly or impliedly, that people within the categories identified in the UNHCR 2012 Guidelines did not need protection.

10. The applicant’s lawyers, in a submission dated 31 July 2014, provided relevant extracts from the UNHCR 2012 Guidelines to the Tribunal: CB180.  More particularly, the submission quoted the UNHCR 2012 Guidelines as follows:

    However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles…

    2) Former LTTE combatants or “cadres”;

    3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

    4)Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

    5)LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

    6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles…

11. The Tribunal referred to the UNHCR 2012 Guidelines in paragraph 42 of its reasons for decision, and set out their full title in footnote 28 to its decision.  The Tribunal also referred to UNHCR 2012 Guidelines in footnote 10 to its reasons for decision.  That footnote supported the Tribunal’s statement in paragraph 20 of its reasons for decision that:

    The Tribunal gives weight to the UNHCR’s assessment that while Tamil ethnicity has been a risk factor in Sri Lanka in the past particularly for those Tamils originating from LTTE controlled areas, this is no longer the case.

12. However, the Tribunal did not set out in its reasons for decision the extract from the UNHCR 2012 Guidelines contained in the applicant’s submissions, or otherwise indicate in any way that it was aware that item 6 in the extract quoted above was:

    Persons with family links [to] or who are dependent on or otherwise closely related to [former LTTE combatants].

13. The Tribunal did not say that the applicant’s nephew did not have a sufficiently close family link to the applicant.  Therefore, it must be accepted that the Tribunal did consider that the applicant had a family link to his nephew, who the Tribunal accepted was an LTTE combatant.  That conclusion also accords with a normal understanding of the concept of “family links”.

14. It follows that the applicant did come within one of the categories of people in need of protection identified in the UNHCR 2012 Guidelines.  The Tribunal was simply incorrect to say that the applicant did not “otherwise” come within any of the categories in the UNHCR 2012 Guidelines. When the Tribunal said that the applicant did not “otherwise” come within any of the categories identified by the UNHCR 2012 Guidelines, the Tribunal did not appear to have been cognisant of the category involving family links.

15. That view is supported by the Tribunal’s immediately preceding statement in the last two sentences of paragraph 41 of its reasons for decision, namely:

    The Tribunal has found that the applicant has not in the past been a member of the LTTE, that he has had only those interactions with the LTTE and its members that all residents of an LTTE controlled area [would have had]. It is not suggested that the applicant has been involved in separatist activities since departing Sri Lanka.

16. The view that the Tribunal was not cognisant of the category of family links is also supported by the Tribunal’s conclusion in paragraph 42 of its reasons for decision, namely:

    In such circumstances the Tribunal does not accept that the applicant’s Tamil ethnicity, his residence in an LTTE controlled area or his past interactions with the LTTE will mean that he will be imputed to be a sympathiser or supporter of the LTTE or opponent of the Sri Lankan government if he returns to Sri Lanka, now or in the foreseeable future, nor that there is a real chance that he will be targeted for harm on that basis.

17. There was no mention in those passages of the applicant’s nephew being an LTTE combatant.  The Tribunal’s reasons for decision suggest that it was not aware that family members of LTTE combatants were a particular category of people that the UNHCR 2012 Guidelines identified as being in need of protection.

18. The Tribunal’s conclusion in paragraph 40 of its reasons for decision that the applicant’s release from the camp in 2010 meant that he was not then of interest to the authorities, notwithstanding his nephew being an LTTE combatant, does not alter the fact that the applicant was self-evidently in one of the categories of people identified in the UNHCR 2012 Guidelines as being in need of protection.

19. Obviously, the Tribunal could have said, if the evidence supported it, that family members of LTTE combatants were no longer at risk.  However, the Tribunal did not do so.  It is not for this court to look at later country information and decide what the Tribunal would have concluded if it had turned its mind to the correct question.

20. Moreover, in context, the natural and correct reading of the sentence:

    Nor does the applicant otherwise come within the categories of persons identified by UNHCR as being in need of protection in its 2012 Guidelines …

    is:

    As well as the applicant not fitting within any of the categories mentioned in the previous paragraph, he does not fit within any of the other categories of people identified by the UNHCR.

21. It is true that the Tribunal considered the impact on the applicant in 2010 of having a family member who was an LTTE combatant.  However, that does not necessarily mean that the Tribunal was aware of the relevant category in the UNHCR 2012 Guidelines.  Presumably, the Tribunal considered the impact on the applicant in 2010 of his nephew being an LTTE combatant because the applicant expressly raised that issue.

22. I do not accept that the Tribunal’s consideration in paragraph 40 of its reasons for decision of the impact on the applicant of his nephew being an LTTE combatant was picked up in paragraph 42 of the Tribunal’s reasons for decision by the words:

    Nor does the applicant otherwise come within the categories of persons identified by UNHCR as being in need of protection in its 2012 Guidelines …

    because it is simply not the case, on the Tribunal’s own findings, that the applicant does not come within one of the categories in the UNHCR 2012 Guidelines.

23. It is also true that the Tribunal made a finding that the applicant was not of interest to the authorities in 2010, notwithstanding his familial relationship with his nephew.  However, that finding does not extend to a finding that the applicant would not be at risk of harm in the future, because of his familial relationship with his nephew, in circumstances where the Tribunal accepted that people in the categories identified in the UNHCR 2012 Guidelines would be in need of protection in the future.

24. As the Tribunal failed to consider the future consequences for the applicant of his familial relationship with his nephew, after apparently accepting that the categories of people identified in the UNHCR 2012 Guidelines were at risk, the Tribunal fell into jurisdictional error.  The error may be characterised as failing to ask the correct question, or failing to consider an integer of the claim.

Ground 2

1. The second ground of review in the application filed on 14 April 2015 and amended on 3 January 2017 is:

   The Tribunal fell into jurisdictional error in that it acted unreasonably or irrationally or illogically or made findings not based on logically probative evidence.

   Particulars

   The Tribunal said:

   “Nor does the applicant otherwise come within the categories of persons identified by the UNHCR as being in need of protection in its 2012 Guidelines. ”

   (CB 215, Decision [40]-[42].)

   but the Tribunal had accepted that the applicant’s nephew had been a member of the LTTE, and the UNHCR Guidelines of 2012 included “Persons with family links” to “Former LTTE combatants or ‘cadres’” as having a profile which “may give rise to a need for international refugee protection”

   (CB 110, 180. See also CB 215, Decision [40]-[42].)

2. This ground takes issue with the same point as the first ground.  It does not seem to me that the error fits comfortably within the notions of unreasonableness, or irrationality or illogicality.  The error was that the Tribunal simply failed to recognise that family members of LTTE combatants were in a category identified in the UNHCR 2012 Guidelines as being at risk, and failed to deal with that issue.  This ground is not made out.

Conclusion

1. As one of the applicant’s grounds was made out, and as there was no suggestion of any discretionary reasons against remittal, the matter must be remitted to the Tribunal with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     13 April 2017