ALP15 v Minister for Immigration

[2016] FCCA 1151

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALP15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1151

Catchwords:
MIGRATION – Protection visa (Class XA) application –review of decision of Refugee Review Tribunal – whether the Tribunal failed to comply with s.414 of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider all of the applicant’s claims – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R

Cases cited:
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [1996] HCA 6
SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9
SZSSC v Minister for Immigration & Border Protection (2014) 317 ALR 365, [2014] FCA 863
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184

Applicant: ALP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1024 of 2015

Judgment of: Judge Smith

Hearing date: 5 April 2016

Date of Last Submission: 5 April 2016

Delivered at: Sydney

Delivered on: 5 April 2016

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: Rasan T Selliah & Associates

Solicitors for the Respondents: Ms P. Blackadder, Sparke Helmore

ORDERS

1. The applicant have leave to file the amended application in the form attached to written submissions filed on 23 March 2016.

2. The applicant pay the first respondent’s costs thrown away by the amendment.

3. The name of the second respondent be amended to “Administrative Appeals Tribunal”.

4. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 18 March 2015.

5. A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 23 September 2013 according to law.

6. The first respondent pay the applicant’s costs set in the amount of $6,825.

7. The costs to be paid by the applicant in accordance with order 2 be set off against the costs to be paid in accordance with in order 6.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1024 of 2015

ALP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

Background

1. The applicant in this matter arrived in Australia on 31 July 2012. He is a young male fisherman from the north-east of Sri Lanka, and is of Tamil ethnicity. He lodged an application for a protection visa on 6 December 2012.

2. There were a number of claims that the applicant based the application to the Tribunal on. These included, amongst others, that as a Tamil fisherman, he and his family had in the past been harassed by government authorities and Sinhalese fishermen and that Tamil fishermen in general, are subject to such interference in their traditional fishing in the north-east and other areas of Sri Lanka that they are now facing extreme hardship as their livelihoods are being threatened to the point where it may not be possible to subsist in the foreseeable future.

3. The reference to subsistence and hardship in livelihood is important because it picks up the definition of a well-founded fear of persecution, and persecution itself as found at the time in s.91R of the Migration Act1958 (Cth). Thus it can be seen that the applicant’s claims relating to his fishing activities had two elements. One was based upon what had happened to him and his family; and the second was the more general claim about what was happening to Tamil fishermen in general.

4. The applicant filed an amended application in these proceedings. The applicant argues that the Tribunal failed to consider the second aspect of that claim, namely, the general aspect of what was happening to Tamil fishermen. The applicant says that the Tribunal only dealt with the claims insofar as they related to him personally – that is, to what had happened to him personally in the past and that this was insufficient to deal with the question raised by s.36 of the Act, and thus that it failed to fulfil its duty to review the decision of the delegate.

Consideration

1. It is not disputed that the claim, in terms briefly described above, was actually made by the applicant in support of his protection visa application. The question is rather whether the Tribunal dealt with that claim. In order to properly understand and address that issue, it is important to go back to the claims actually made by the applicant, and then to examine in some detail the Tribunal’s reasons.

2. It is important to note that the approach to understanding the Tribunal’s reasons is to take into account the fact that the Tribunal is an administrative decision-maker, with a lot of work to be done in a short period of time, and thus those reasons are to be given a beneficial construction in line with the principles explained in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [1996] HCA 6 at 271 and 272. However, Stone J in SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 said at [26] that the:

   … ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.

3. In respect of this issue the Minister relied upon the decision in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184, in particular at [46];

   It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

4. The Court went on to say, however, at [47]:

   …

   Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

5. In a submission made on behalf of the applicant, amongst others, to the Department of Immigration in support of the application for a protection visa, reference was made to a number of articles concerning the current plight of Tamil fishermen in Sri Lanka. Included in that submission was the following:

   …

   Trincomalee, on the northeast coast, has one of the world’s finest natural harbours and was fiercely fought over during the war until government troops finally defeated the rebel Tamil Tigers in May last year.

   “The problem we have now is that although we have the freedom to go out and work, the fish are being illegally destroyed to the point where we can’t earn a living”.

6. The submission went on to say that:

   On the basis of the above it is clear that the government is condoning the encroachment of traditional fishing and other lands (by influential Sinhalese) owned by Tamils in various parts of the country on the pretext of economic development ... More recently the government’s actions have begun to affect several Tamil fisherman (sic) who are of Indian heritage and have been residing in the fishing village Udappu for many years ... They are now facing extreme hardship as their livelihoods are being threatened to the point where it may not be possible to subsist in the foreseeable future.

7. The reference in that passage to Udappu is to a town in the north-west of Sri Lanka. However, it is clear by implication in the balance of the submission that the same point was being made about the north-east, where the applicant came from. In later submissions made to the department similar claims were made, so that there was reference to recent reports of increased acts of intrusion by Sri Lankan naval authorities and Sinhalese fishermen on the fishing activities of Tamils within parts of Sri Lanka, which it noted had been identified as posing a threat to the livelihood of the Tamil fishermen in those areas.

8. There was further reference to a report published in December 2011. This report referred to the discriminatory treatment being faced by Tamil fishermen from the military in the north that is having an adverse impact on their livelihoods, and a number of reports from various sources to the same effect. On 23 September 2013 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa, and he applied to the Refugee Review Tribunal[1] for review of that decision.

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

9. After the conclusion of the hearing conducted by the Tribunal, further submissions were submitted on behalf of the applicant, which included a direct claim that the applicant faced harm as a Tamil fisherman. This submission referred to information concerning harm suffered by Indian fishermen from Tamil Nadu, and argued that there seemed to be practically nothing that would differentiate a Sri Lankan Tamil fishing vessel from an Indian Tamil fishing vessel. The submission went on that there is also the possibility of human error that could be made by the Navy which exposes the claimant to significant harm, if not serious harm, by engaging Australia’s complementary protection obligations.

10. The Tribunal made its decision on 18 March 2015. In the second part of its reasons, headed Claims and Evidence, the Tribunal referred to the claims concerning the fear of harm by reason of being a Tamil fisherman. At [19] the Tribunal stated:

    …

    The applicant claimed that Sinhalese people were dominating the Tamils in the area that he came from and that “they take our fish by force and if we do anything they come by force with the military and Navy. ... If we want to stay in Sri Lanka, we have to stay like a slave to the Sinhalese”. ... The applicant claims that the Sri Lankan Navy continues to harass Tamil fishermen and he also referred to an incident where a Muslim fishermen (sic) was tortured and killed.

11. Later, at [22], the Tribunal noted the following;

    …

    The submissions suggest that the applicant is fearful of ongoing conflicts between the Sinhalese and Tamil fishermen and that this would lead to greater threats of attacks on Tamil fishermen. The submissions suggest that the applicant would face serious harm if he returned to Sri Lanka and that would include threats to his life and liberty and a threat to his capacity to earn a livelihood ... The submissions suggest that the applicant is also at risk because of his work as a fisherman and ongoing conflict between Tamil and Sinhalese fishermen.

    …

12. The Tribunal also referred, at [23], to the claim concerning the difficulties faced by Tamil fishermen. In light of that, it appears at least that the Tribunal was cognisant of the claims made by the applicant, even if it had not set out in great detail all of the information relied upon by him in connection with those claims. That is said not by way of criticism. The question then is whether, having been cognisant of them, it actually considered those claims. The Tribunal’s findings and consideration of the claims is set out from [61] of its decision under the heading Consideration of Claims and Evidence. At [63] the Tribunal stated:

    …

    The Tribunal is also not satisfied that the applicant has a well-founded fear of harm on the basis that he is a Tamil person who engages in fishing activities or on the basis that he could be perceived to have links with a claimed LTTE fundraiser.

13. That statement, or the first part of that statement, is at such a level of generality that it could, subject to the balance of the reasons of the Tribunal, be taken to have dealt with both aspects of the applicant’s claim concerning his fishing activities. However, as with any written document, the statement must be examined in its context in order to be understood. The context includes [65] to [69] in which the Tribunal purports to deal with the fishing claims, although as I will say later, the respondent Minister has also pointed to [70] of the Tribunal’s reasons, and I will return to that in due course.

14. Paragraphs [65] to [68] of the Tribunal’s reasons were as follows:

    [65] The Tribunal has considered the applicant’s claims that because of his Tamil ethnic extraction and because he is a young Tamil male from the North East of Sri Lanka who left illegally that he is at risk of harm on that basis if he returned to Sri Lanka. The applicant gave evidence to the Tribunal about his claims that he and his family had been harassed and harmed by the Sri Lankan Navy or Sinhalese fishermen while carrying out fishing activities. He claimed in his statutory declaration that his grandfather had been killed in 1996 by the Navy. He claimed his family had to flee Sri Lanka on two occasions to avoid harm and go to India and that was because he and his family were Tamils. As indicated the Tribunal found difficulty in getting clear details from the applicant about many of his claims and particularly in relation to his claims about being harmed by the navy and also about his claims surrounding what he said happened to his family and the threats to his family after the 2006 bombing. The applicant claimed that the two events that he could recall in relation to the navy were very significant events in his life and he referred to those two events in his statutory declaration.

    [66] He claimed there had been other events as well involving the Navy and Sinhalese fishermen but struggled to provide any details to the Tribunal about these other events. He described these other claimed incidents as being more routine in nature. Apart from repeating his core claims in the statutory declaration the applicant also struggled to provide any further details to the Tribunal about those two incidents. The applicant had given evidence about his family fleeing to India on two occasions. He was asked in particular about his claims relating to the 2006 bombing incident and what had happened to his family as a result. The Tribunal again found it difficult to get clear details from the applicant about those issues and again he essentially repeated the core claim in his statutory declaration. The Tribunal has referred elsewhere in these reasons to the applicant’s evidence about that incident. Overall the Tribunal found it very difficult to get detailed and clear evidence from the applicant as to his claims about these incidents. On occasions the applicant was inconsistent in relation to his claims and this was so in particular in relation to his claims surrounding the 2006 bombing incident. Notwithstanding the applicant’s claim to fear harm on the basis of his Tamil ethnic extraction he and his family returned twice from India to Sri Lanka and apparently without difficulty upon return. He left Sri Lanka without difficulty to travel to Malaysia and Singapore and he returned from Malaysia again apparently without difficulty. He obtained a Sri Lankan passport without difficulty.

    [67] The Tribunal has considered the applicant’s claims to fear harm on the basis of his Tamil ethnic extraction. It has considered the applicant’s claims and his evidence and the submissions made on his behalf in relation to this claim. The Tribunal has considered relevant country information in relation to this claim by the applicant. The Tribunal has also considered its assessment of the applicant’s credibility in considering this claim. In all the circumstances the Tribunal does not accept that the applicant has a well founded fear of harm on the basis that he is a young Tamil male from the North East of Sri Lanka. The applicant’s often vague and on occasions inconsistent evidence and his inability to provide fuller details surrounding his claims in relation to this issue do not satisfy the Tribunal as to his claims that the events involving the Sri Lankan Navy in 2009 that he referred to in his statutory declaration and before the Tribunal and in his entry interview occurred as he claimed. Given the significance of the claims by the applicant in terms of the two events involving the Navy that he referred to in his statutory declaration it would be reasonable to expect that the applicant would have been able to provide fuller and more detailed evidence about those claimed incidents and about the difficulties with the navy and Sinhalese fishermen more generally. The applicant was even fairly general about identifying the dates of the two incidents in 2009. The Tribunal having regard to the difficulty in obtaining details from the applicant is not satisfied that the applicant was beaten by the Navy as he claimed in 2009. The Tribunal is not satisfied as to the applicant’s claims that he and his father were forced to jump into the sea and were fired upon by the Sri Lankan Navy in 2009 as he claims. The Tribunal is not satisfied, having regard to the applicant’s evidence, as to the applicant’s claims that he was beaten and mistreated by the Navy and is also not satisfied as to the applicant’s claims that the Navy and Sinhalese fishermen damaged fishing equipment, including nets and forced the applicant and his family to jettison fish and otherwise harassed and harmed him and his family as he claims and including in 2012 before he came to Australia. The Tribunal, based on its assessment of the applicant’s credibility, is also not satisfied as to the applicant’s claims that the Navy killed his grandfather in 1996. The death certificate provided to the Department in relation to his grandfather’s death indicates that he died of gunshot injuries on 18 December 1996 and that his profession was that of fishing however the Tribunal is not satisfied based only on the applicant’s evidence as to his claim that it was the Navy who shot and killed his grandfather.

    [68] The applicant’s evidence about his claims regarding interference with his fishing activities was that he claimed in 2009 there were two incidents that he could recall that he told the Tribunal about. He was unable to provide the Tribunal with any detailed evidence as to his wider claims that he and his family had been constantly harassed by the Navy and or Sinhalese fishermen while undertaking fishing activities. He told the Tribunal that there had been no real problems from about May 2009 until January 2011 in terms of the fishing activities or in relation to any other claims he had. He had claimed that the problems that he encountered when fishing were more routine problems apart from the two incidents in 2009 but was not able to provide the Tribunal with any specific details about these other incidents. He told the Tribunal that after the January 2012 incident where he claimed to have been detained he returned to his fishing activities and remained fishing until around June or July 2012 when he came to Australia. He made some general claims that Sinhalese fishermen and the Navy had been engaged in harassment of he and his family while they fishing. However he did not provide the Tribunal with any detailed evidence in relation to actual events surrounding these claims. His evidence was that the Navy and Sinhalese fishermen had generally interfered with his fishing activities and damaged his fishing nets but his evidence lacked any specific details about particular or actual events. The Tribunal has considered the applicant’s claims that his fishing activities have been generally interfered with by the Navy and Sinhalese fishermen. The Tribunal is not satisfied as to the applicant’s claims that he has a well-founded fear of harm on the basis of the evidence before the Tribunal in relation to these claims. The Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of the applicant’s evidence in relation to these claims should he return to Sri Lanka either now or in the reasonably foreseeable future.

    (Errors in original)

1. At [65] the Tribunal deals with the applicant’s claims concerning past events that had, he said, occurred to him. It does not purport to deal with the broader claim concerning other Tamil fishermen. The same may be said of [66]. Paragraph [67] starts with a general summary which refers to the claims to fear harm on the basis of Tamil ethnicity, and the fact that the Tribunal said that it had considered relevant country information.

2. At first glance then, [67] could be taken to support the Minister’s argument that the Tribunal had then turned to consider the general claim. Certainly, the reference to relevant country information supports that argument. However, the balance of the paragraph does not support the argument.

3. First, the reference to credibility can only go to an assessment of the claims about the past events that had occurred, particularly to the applicant and his family. Secondly, each other finding made in [67] is restricted to the events that the applicant claimed to have occurred to him. Thus, at line 10 the Tribunal refers to the applicant’s evidence concerning the events involving the Sri Lankan Navy in 2009 which then continues through to the next half of the paragraph. The Tribunal concludes that it was not satisfied, having regard to the applicant’s evidence, that he was beaten and mistreated by the Navy.

4. Next, the Tribunal says, again based upon its assessment of the applicant’s credibility, that it was not satisfied about the applicant’s claims that the Navy killed his grandfather in 1996. So even though the opening at [67] suggests that the Tribunal had the broader claim in mind, the balance of the paragraph undermines that and leads me to conclude that the Tribunal was only addressing the individual specific claims made by the applicant in that paragraph.

5. Paragraph 68 initially deals with only the individual claims made by the applicant. However, the Minister points to the last 6 lines of that paragraph to suggest that all of the claims were considered in that paragraph. In particular, the Minister relies upon the last sentence referring to “these claims”. I accept that there is some indication in isolation that the Tribunal has considered the broader claim concerning Sinhalese fishermen – Tamil fishermen. However, reference in the paragraph shows that the reference to ‘claims’ is only a reference to the applicant’s fishing activities having been generally interfered with by the Navy and Sinhalese fishermen.  In other words, it was to events that the applicant claimed had happened to him in the past.

6. On that analysis, in my view, [65] - [68] of the Tribunal’s reasons shows that the Tribunal focused solely upon what had happened in the past to the applicant. It did not consider the broader claim as relating to Tamil fishermen in general. That supports the view that the last sentence in [63] as a general summary is, in turn, only focused upon that aspect of the claim and not on the general claim.

7. As I noted earlier, the Minister relied on [70] of the Tribunal’s reasons to argue that the Tribunal had, in fact, simply preferred other country information to that relied upon by the applicant in support of Tamil fishermen claims. Again, at first glance, that does appear to be the case. However, that is undermined by the last sentence of the paragraph which states:

   …

   On this basis the Tribunal does not accept that the applicant is at risk in accordance with the 2012 UNHCR eligibility guidelines solely on the basis that he is a young Tamil male from north east Sri Lanka.

8. That last sentence, of course, does not capture the broader claim, that the applicant was a Tamil fisherman and had a well-founded fear of persecution on that basis. For those reasons, in my view, the Tribunal did not consider the general claims concerning Tamil fishermen in Sri Lanka.

Conclusion

1. There is no dispute that such a failure constituted jurisdictional error and such principle is well established. See, for example, SZSSC v Minister for Immigration & Border Protection (2014) 317 ALR 365 at 389 [81], [2014] FCA 863. For those reasons, I conclude that the Tribunal has fallen into jurisdictional error and that its decision ought to be quashed and the matter remitted to be determined according to law.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  16 May 2016