ALW15 v Minister for Immigration and Border Protection
[2018] FCA 190
•28 February 2018
FEDERAL COURT OF AUSTRALIA
ALW15 v Minister for Immigration and Border Protection [2018] FCA 190
Appeal from: ALW15 v Minister for Immigration [2016] FCCA 3148 File number: VID 1466 of 2016 Judge: WHITE J Date of judgment: 28 February 2018 Date of publication of reasons: 6 March 2018 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – whether Refugee Review Tribunal (RRT) denied the Appellant procedural fairness and/or breached its obligations under ss 424 or 425 of the Migration Act 1958 (Cth) – whether RRT failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained.
MIGRATION – whether constructive failure by the RRT to exercise jurisdiction – whether RRT failed to consider the risk to the Appellant of persecution or significant harm after his release from detention on being returned.
Legislation: Migration Act 1958 (Cth) ss 424, 425, 476 Cases cited: AJT15 v Minister for Immigration [2016] FCCA 2262
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Date of hearing: 28 February 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 38 Counsel for the Appellant: Mr A Krohn Solicitor for the Appellant: Ambi Associates Counsel for the First Respondent: Mr A Yuile Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 1466 of 2016 BETWEEN: ALW15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHITE J
DATE OF ORDER:
28 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed, with the reasons for that decision to be published at a later date.
2.The Appellant is to pay the costs of the First Respondent, to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHITE J:
This appeal was heard on 28 February 2018. At the conclusion of the hearing, I announced my decision that the appeal be dismissed, and said that I would publish reasons later. The following are my reasons.
The Appellant is a national of Sri Lanka who arrived in Australia by boat on 16 July 2012. His subsequent application for a protection visa was refused by a delegate of the Minister of Immigration and Border Protection (the Minister) and that refusal was affirmed by the former Refugee Review Tribunal (the RRT). The Appellant’s application for judicial review in the Federal Circuit Court (the FCC) pursuant to s 476 of the Migration Act 1958 (Cth) was dismissed: ALW15 v Minister for Immigration [2016] FCCA 3148. The Appellant now appeals against that dismissal.
The Appellant’s Notice of Appeal contains five grounds. However, the Appellant pursues only Ground 1 and Ground 5(b).
Ground 1
Ground 1 alleges that the FCC Judge should have found that the RRT had denied the Appellant procedural fairness and/or breached its obligations under s 424 or s 425 of the Migration Act “in failing to contact, and/or in failing to properly consider, the request of the applicant to contact his previous employer”.
As is apparent, the Appellant seeks by this ground to invoke the principle evident in the judgment of the plurality in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] that, in some circumstances, a failure by the Tribunal to make an enquiry may constitute a failure to discharge the statutory obligation to review:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. …
(Emphasis added and citation omitted)
The Appellant’s contention in the FCC was that the RRT’s failure to contact his previous employer amounted to “a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained”, so as to give rise to a failure to discharge the obligations imposed on it by ss 424 and 425 of the Migration Act to review the delegate’s decision.
In the RRT, the Appellant made a number of separate claims in support of his application for a protection visa. Each was rejected by the RRT, as was their effect considered cumulatively. Ground 1 relates to only one of those claims. Accordingly, it is not necessary to outline the other claims.
The RRT accepted the Appellant’s claim that, from about late 2008, he had worked as a building supervisor for a company with the name “TK Construction”; that in late 2010, TK Construction had been awarded a contract in connection with construction work at a hospital; that there had been rivalry for the award of such contract; that after TK Construction had commenced work in performance of the contract, five men from, or connected with, a rival for the contract had come to the hospital and torn up the letter awarding the contract to TK Construction; and that thereafter the Appellant had received nine or 10 threatening phone calls (four or five of which occurred after he had changed the SIM card in his phone) in one of which the Appellant had been told that if he “wanted to live” he should quit the construction job. The Appellant told the RRT member that his boss had wished to complain to the police about the tearing up of his contact but had been dissuaded from doing so by a hospital administrator. Further, the Appellant claimed that in about January 2010, he had quit his job with TK Construction because of the threats and in February 2011 he went to work in Qatar. He returned to Sri Lanka in May 2012.
The Appellant told the RRT that on his return to Sri Lanka he had feared harm from the Karuna and/or Pillayan groups who he believed were responsible for the threats made to him while working for TK Construction. Because of that fear, he did not go outside his home much. His sister’s husband had told him that the people who had caused him trouble whilst he was working at TK Construction would remember him. Accordingly, when he heard of a boat going to Australia, he made the decision to leave. He feared harm from these same persons if he returns, or is returned, to Sri Lanka.
The RRT member addressed in some detail the credibility of the Appellant’s claim that he continued to fear harm at the hands of those who had threatened him in late 2010. He considered that it was significant that, while his former employer was the more obvious target for harm of the kind which the Appellant claimed to fear, he had continued to conduct business activities in Sri Lanka well after the Appellant had departed for Qatar. The RRT member drew the inference that this was so from the letter from his former employer which the Appellant had provided to the RRT. This letter was on the printed letterhead of TK Construction and was dated 20 December 2012. The substance of the letter was as follows:
TO WHOM IT MAY CONCERN
Dear Sir,
Certifying the Job
I would like to certify that [ALW15] who had been working in my TK Construction from 2008 to December 2010. He took all the Construction authority and did all the in charge of every work. So in the eye of others made that he is in charge of the construction and doing the work. So he was threatened to be murdered by unknown persons over the phone and directly. It took several times.
Then he left to Qatar in 2011 in order to save his life. While he was working, he is honest and trustworthy.
Thanking you.
Yours sincerely
[Name]
Managing Director TK Construction
[Address details]The RRT member put his concern to the Appellant who responded by saying that his former employer was no longer doing building work but instead was in the business of distributing mobile phones. The RRT member accepted that, at the time of his hearing (in February 2015), the former employer was no longer involved in construction work but found that he had continued to engage in the TK Construction business until late 2012 when he had provided the letter on which the Appellant relied.
The RRT member noted in this regard that the former employer had included on the letter an ICTAD registration number (relating to the registration of his company) and that he had signed the letter as managing director of TK Construction. The Appellant maintained, however, that his former employer had not continued to run TK Construction until December 2012. He told the RRT member that he (the RRT member) could check that fact with the former employer.
In his reasons, at [73], the RRT member said that he did not consider it necessary to make the check suggested by the Appellant. He went on to reject the Appellant’s claim that the former employer was no longer engaged in construction work as at December 2012 saying that, if he was only engaged in a telecommunications business at that time, he would not have issued the letter describing himself as managing director of TK Construction and would not have done so with a registration relevant to building registration stamped on the letter. The RRT member rejected the possibilities that the former employer was running a telecommunications distribution business under the name TK Construction and that he would sign letters as manager of TK Construction if no longer running such a company.
The RRT member regarded it as particularly significant that the former employer had been able to remain in Sri Lanka and conduct business activities there. Given that the former employer was the more obvious target for the harm feared by the Appellant, this suggested, the RRT member reasoned, an absence of ongoing interest in the Appellant by the persons who had made the threats.
The RRT member did not accept that those who had threatened the Appellant were members of the Karuna or Pillayan groups. These were said to be paramilitary groups with some association with the Sri Lankan police. The RRT member concluded that the incidents involving the tearing up of the contract and threats to the Appellant were, in essence, criminal activities relating to the award of a particular contract. In particular, he rejected that they were a manifestation of the Appellant being targeted by reasons of his race or political opinion.
Counsel for the Appellant submitted that the RRT’s finding that the former employer was still engaged in construction work in December 2012 was a critical finding undermining the Appellant’s Convention‑based claim. It was said to be critical because it indicated that the threats from the paramilitary groups had not prevented the former employer from engaging in construction work as late as 2012. Counsel submitted that the RRT could easily have made an enquiry of the former employer by “telephone or otherwise” to check whether he was still engaged in construction work in December 2012. The response of the former employer would either have been independent corroboration of the Appellant’s claims or confirmation of the RRT’s own concerns about the veracity of those claims. The failure of the RRT to make that enquiry constituted, it was submitted, a failure by it to discharge its statutory task under s 424 or s 425 of the Migration Act. I note that this submission did not elaborate the way in which the RRT’s omission to obtain the information could be regarded as a failure to complete the statutory task imposed by s 425.
The FCC Judge rejected this contention, at [27]‑[33]. The submissions advanced by the Appellant on appeal appear to have been substantially the same as those advanced in the FCC.
In my opinion, the Appellant does not make good his contention that the FCC Judge erred in rejecting his claim that the issue of whether or not his former employer had continued in construction work in December 2012 was critical to the RRT’s determination. It was apparent that the matter which was critical to the RRT’s determination was not that the former employer had continued in construction work to December 2012, but that he had been able to remain in Sri Lanka and to continue business activities both before and after December 2012 without any suggestion of threats or interference by those from whom the Appellant claimed to fear harm. So much is evident from the RRT’s findings:
In any event, regardless of the precise nature of the business activities, the Tribunal considers it to be of some significance that, in spite of the problems that the applicant’s claims also affected [the former employer] in late 2010, [the former employer] has clearly been able to remain in Sri Lanka and pursue business activities there.
Secondly, the RRT rejected the Appellant’s claims that threats made to him whilst engaged in construction work were Convention‑based. To the contrary, the RRT found that the threats were a form of criminal activity relating to the award of the hospital contract and had not been shown to be related to the paramilitary groups suspected by the Appellant. Information from the former employer about whether or not he had continued in construction work to December 2012 or had ceased doing so earlier would not bear on that fundamental finding.
Further, as counsel for the Minister pointed out, the Appellant was asking the RRT not to draw inferences which arose naturally from the document which he himself had presented. This was not a case of the RRT not accepting evidence provided by the Appellant on a basis which could easily have been checked by the RRT. That circumstance militates against the existence of the “duty” for which the Appellant contends in this case.
These matters are sufficient to indicate that the premise underlying this ground of appeal is not established. It means, as the FCC Judge concluded, that the Appellant did not demonstrate a factual basis for a conclusion that the failure to make the postulated enquiry constituted a failure to undertake the statutory duty of review.
I observe in addition (to the extent that it may be relevant) that the Appellant did not present in the FCC any evidence from his former employer as to the response he would have given had the RRT made the postulated enquiry. Accordingly, it is not known what response the former employer may have given. He may have said that he had continued in construction work to December 2012, which would have undermined the basis of this particular claim of the Appellant. If he said that he had ceased construction work at some time between February 2011 and December 2012, the Appellant’s claims may still have been undermined, depending on when the cessation occurred. If the former employer had claimed that he had ceased construction work in February 2011, the RRT would then have had to consider the veracity of that claim taking into account that he had, in December 2012, continued to describe himself as Managing Director of TK Construction.
Counsel for the Appellant referred to AJT15 v Minister for Immigration [2016] FCCA 2262 as an illustration of a case, in somewhat analogous circumstances, in which a failure to make an enquiry had been held to give rise to a constructive failure to review. However, there are relevant differences between the circumstances of the two cases. I do not consider AJT15 to be of assistance presently.
For these reasons, I am not satisfied that the Appellant has made good the claim that the RRT failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, and thereby failed to discharge the statutory duty. The FCC Judge was correct to reject this ground. This ground of appeal fails.
Ground 5(b)
By Ground 5(b), the Appellant contends that the FCC Judge should have found that the RRT had constructively failed to exercise its jurisdiction by failing to consider the risk to him of persecution or significant harm after his release from initial detention on being returned to Sri Lanka.
The RRT found that, if the Appellant is returned to Sri Lanka, he is likely to be “processed” at the Sir Lankan airport. This would involve the Appellant being subjected to “standard” procedures, which may result in his being detained for questioning, being prosecuted for having left Sri Lanka by illegal means, and being fined. The RRT member did not accept that any of that treatment would constitute persecution for a Convention‑based reason, or amount to the Appellant being at risk of suffering “significant harm”.
The Appellant did not impugn those findings. His submission was that, despite the RRT having evidence of harassment, harm and even torture of some returnees after their release from initial detention, it had failed to consider that risk in reaching its conclusion.
In support of this ground, the Appellant referred to an Annexure to the submissions to the RRT made on his behalf by his migration lawyers. The Annexure, which was itself in the form of a submission, referred to reports suggesting that it is not appropriate to conclude that returnees are not subject to harassment, arrest, detention or torture based upon their migration history following their return to their home districts. In particular, the lawyers had the quoted extracts from a 2012 report of the Swiss Refugee Council that “[t]he police or CID have on a number of occasions gone to find returnees in their place of residence to interrogate them”, from a 2014 report by the Bar Human Rights Committee of England and Wales that some asylum seekers had reported being detained when they returned to their home address, and from other documents reporting that asylum seekers had been harassed, detained and even tortured over periods up to seven years after their return.
The FCC Judge rejected this ground. He considered that the RRT’s reasons had addressed this particular aspect of the Appellant’s claims, referring to [108]‑[111], [113]‑[115] and [121].
In my opinion, the decision of the FCC Judge is correct. The RRT did refer to the submissions made on the Appellant’s behalf in the Annexure to the written submissions, including by referring specifically to a number of the reports to which it referred, at [33]‑[42] and at [106]‑[110].
At [111], the RRT said:
The Tribunal notes that submissions have referred to reports of mistreatment of returnees. The Tribunal has had regard to these submissions. However, these need to be weighed against other reports such as the material from DFAT. While the applicant has stated that mistreatment would not come out, as noted by DFAT thousands of asylum seekers have now returned. DFAT has stated that it assesses that the risk of torture or mistreatment for the great majority of returnees is low. Further, the Tribunal notes that a number of the sources referring to harm to returnees highlight the significance of an actual or suspected affiliation with the LTTE.
(Emphasis added)
At [112], the RRT said:
The Tribunal accepts that those with an actual or perceived association with the LTTE may face a risk of harm in Sri Lanka and that this also applies to people with such a profile who have returned to Sri Lanka from abroad. It has had regard to material that has been submitted. However, having regard to all of the information on the treatment of returnees, the Tribunal is not satisfied that returnees generally or those who come from previously Tamil‑controlled areas are regarded as having links with the LTTE or being opposed to the government or pro‑LTTE simply because they have been in Australia. … The Tribunal does not accept that Tamils generally are of adverse interest to the authorities or anyone else because they are regarded as connected to the LTTE.
(Emphasis added)
With particular reference to the risk of harassment or harm following his release from detention at the airport, the RRT member said, at [115]:
The representative made submissions at the hearing about people being “screened” again in their local area. The Tribunal notes that the UNHCR has indicated that a substantial proportion of refugee returnees are contacted at their homes in the village of destination by either a military or police officer for further “registration” and that some returnees are visited at home again for subsequent interviews … However, the Tribunal is not satisfied that such treatment by the authorities amounts to serious harm or gives rise to a real chance of serious harm. …. The Tribunal accepts that, if people are of interest to the authorities, they may face being picked up from their home area. However, the Tribunal does not accept that the Applicant has a profile that would make him of any particular interest to the authorities. In these circumstances, it is not satisfied that there is any real chance that he would be persecuted by the authorities on return to his home area.
(Emphasis added)
Next, at [121], the Tribunal said:
The Tribunal accepts on the evidence before it that a suspicion of LTTE links may give rise to harsh treatment or torture either on return or at some later time. However, the Tribunal does not accept that the applicant would be suspected of being someone with LTTE links or an association with the LTTE. It does not accept that he would be in any way regarded as someone with an association with LTTE. It does accept that he would perceived as anti‑government, pro‑LTTE or separatist or a threat to the integrity of the state. Having carefully weighed all the country information and having regard to the applicant’s particular circumstances, the Tribunal is not satisfied that, if the applicant were to return to Sri Lanka, he would be persecuted for reason of membership of particular social groups such as Tamil failed asylum seekers who left the country illegally, for reason of his ethnicity or for reason of an imputed political opinion.
(Emphasis added)
With particular reference to the Appellant’s claim for complementary protection, the Tribunal said, at [144]:
The applicant may receive contact or visits from the authorities on return to his village. The Tribunal has had regard to the definition of significant harm in s 36(2A) and the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1). However, the Tribunal does not accept that that such treatment, even considered cumulatively, constitutes significant harm or that there is any real risk that the applicant will suffer significant harm as a Tamil who left Sri Lanka illegally and who has spent time in Australia and applied for asylum here.
(Emphasis added)
In the submissions on the appeal, the Appellant’s counsel submitted that the focus of the RRT’s reasons had been on persons who were already of some particular adverse interest to the Sri Lankan authorities, whereas the submissions in the RRT had also addressed the treatment of persons who were not of apparent adverse interest. That submission is not borne out by the passages to which I have just referred. Plainly, the RRT member was alert to the distinction between these two categories of returnees and dealt with the risk of harm to each. In particular, the RRT member accepted that those with association with the LTTE may be at continuing risk of harm but was satisfied that the Appellant is not in that category.
In my opinion, this ground of appeal cannot succeed on the facts. Accordingly, it is not necessary to refer to the authorities to which the Appellant referred, namely, Minister for Aboriginal Affairs v Peko‑Wallsend (1986) 162 CLR 24 at [15] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24], [95]. In this case it is apparent that the RRT did consider the Appellant’s claims. No error in the conclusion of the FCC Judge has been shown.
Conclusion
These are my reasons for the decision on 28 February 2018 that the appeal be dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 6 March 2018
0
5
1