Ann15 v Minister for Immigration

[2018] FCCA 2345

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANN15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2345

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Whether independent country information was about an individual or a class of persons and whether it had to be notified to the applicant pursuant to s.424A(1) of the Migration Act 1958.

Legislation:

Migration Act 1958, ss.36, 424A, 474

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

Applicant: ANN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1090 of 2015

Judgment of: Judge Cameron

Hearing date: 5 July 2018

Date of Last Submission: 5 July 2018

Delivered at: Sydney

Delivered on: 5 July 2018

REPRESENTATION

Counsel for the Applicant: Mr D. Godwin

Counsel for the First Respondent: Mr G. Johnson

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,760.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1090 of 2015

ANN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived by boat at Christmas Island on 1 July 2012.  On 15 November 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.  On 2 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) 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.

2. 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.

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

BACKGROUND FACTS

Claims

1. The facts alleged in support of the applicant’s claim for protection were summarised by the Tribunal in its decision record.  Relevantly, the applicant made the following claims:

   a)he was born in Negombo, Sri Lanka and is a Tamil Hindu;

   b)his family had always supported the United National Party (“UNP”).  Although he was a member of the party, he was only an observer who sometimes assisted, not an activist;

   c)he was involved in one election in October 2011.  It was a local government election and he had supported the UNP candidate (“SM”) by putting up posters and campaigning door-to-door;

   d)the election was won by SM.  The losing candidate’s brother, named “NL”, a local member of parliament from the Sri Lankan Freedom Party (“SLFP”), was upset by the UNP’s victory;

   e)at around this time, his father died as a result of being chased and pushed by political enemies;

   f)he attended the May Day rally in Jaffna 2012 with a group of political colleagues.  NL had confronted them and told them not to go but they ignored his request.  While he was in Jaffna, his mother called him and said that NL’s supporters had come to their home and broken windows.  She told him not to come back.  He stayed at his uncle’s place in Jaffna for a few days and then left by boat for Australia;

   g)he had been attacked many times in the past because of his support for the UNP;

   h)his family used to live across the road from the SLFP office of NL.  They moved in January 2014 after receiving threats and had not had any trouble since then;

   i)in about January 2014 his brother, who was also a UNP member, was attacked by one of NL’s supporters;

   j)NL’s family were powerful criminals and were known to do bad things to people.  They were angry at him because he had campaigned against them;

   k)he had relatives living in the Vanni area of Sri Lanka who had been members of the Liberation Tigers of Tamil Eelam (“LTTE”) but he had never been questioned by the police or the army about his connection to them; and

   l)as a Tamil he would be perceived as being associated with the LTTE.  He would also be at risk because of his illegal departure from Sri Lanka and his membership of the particular social group comprised of “failed asylum seekers from a western country”.

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.

2. For the following reasons, the Tribunal did not accept that there was a real chance that the applicant would suffer harm in Sri Lanka in the reasonably foreseeable future for reasons relating to his support for the UNP:

   a)the Tribunal accepted that the applicant had provided low-level campaign support for SM in the October 2011 local government elections.  However, as he did not claim to have been involved or engaged in any other work for the UNP, the Tribunal found that the applicant had only ever been involved with the UNP in that one election;

   b)the Tribunal did not accept that the applicant was a formal member of the UNP or that he had been attacked many times because he did not make either of these claims at the hearing before the Tribunal; 

   c)the Tribunal accepted the applicant’s claims of past mistreatment by NL and NL’s family and supporters.  However, apart from the one incident in January 2014 when his brother was assaulted, the Tribunal did not accept that the applicant or any member of his family had been threatened with harm since May 2012.  The fact that the applicant’s family had been able to live across the road from the SLFP office of NL without apparent incident between May 2012 and January 2014 indicated to the Tribunal that his family was not of ongoing interest.  Further, the Tribunal accepted the applicant’s evidence that his family had had no problems since January 2014 when they moved home;

   d)the Tribunal accepted that if the applicant returned to Sri Lanka he would continue to provide low-level support to the UNP during future election campaigns.  However, having regard to country information, it found that the chance that the applicant would suffer serious harm as a result was remote and far-fetched.  In the Tribunal’s view, the fact that a UNP coalition government was by then in power further reduced the chance that a low-level supporter such as the applicant would be subjected to harm; and

   e)in light of these various matters, and given that the applicant himself had never been subjected to mistreatment or harm by a member or supporter of NL’s family, the chance that the applicant would suffer serious harm at their hands if he returned to Sri Lanka was also remote and far-fetched.

3. The Tribunal did not accept that the applicant would be suspected of having links with the LTTE or of being an LTTE supporter, or that he would be imputed with pro-LTTE views.

4. The Tribunal also did not accept that the applicant would be subjected to serious harm as a returnee to Sri Lanka, whether as a failed asylum seeker, a failed asylum seeker from a western country, a returnee from a western country, or someone who had departed illegally by boat.     

PROCEEDINGS IN THIS COURT

1. In his application commencing these proceedings the applicant alleged:

   1.The RRT failed to comply with s.424A of the Act.

   Particulars

   The RRT did not comply with s.424A in relation to the information that President Sirisena was recently elected as president as part of a UNP coalition.

2. The finding upon which the applicant’s argument was based was found in para.55 of the Tribunal’s decision record where it said:

   In the Tribunal’s view, the fact a UNP lead [sic] coalition government is now in power in Colombo would further reduce the chance that a low-level UNP supporter such as the applicant would be subjected to serious harm in the reasonably foreseeable future.

3. The fact that a UNP government had been elected was, the Tribunal disclosed, derived from a DFAT report dated 16 February 2015.  According to para.28 of its decision record, at the applicant’s hearing before the Tribunal on 15 January 2015 the following occurred:

   The Tribunal noted that the information before it from independent sources indicated that UNP politicians, UNP candidates and members and high profile UNP supporters had been subjected to targeted attacks in recent years, and reports indicate that election day violence has occurred, however, there were few reports to indicate that low-level UNP supporters had been subjected to targeted adverse treatment and violence in the recent past.  In response, he said the low-level supporters were the ones most at risk and that the violence against them was not being reported.  The Tribunal discussed the submissions of his agent which referred to the under-reporting of incidents and the existence of some reports of attacks against UNP supporters in the past.  It asked him to comment on the recent election of President Sirisena who was part of a UNP coalition, which suggested the UNP was now part of the ruling government and that the situation for UNP supporters could be likely to improve in the future.  In response he said that the new president was formerly a member of the past government and it is too early to know what will happen in the future.

4. At the material time, s.424A relevantly provided:

   424A  Information and invitation given in writing by Tribunal

   (1)    Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)  invite the applicant to comment on or respond to it.

   …

   (3)  This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   …

5. The applicant contended that it could be inferred from what the Tribunal said in para.28 of its decision that it had concluded that the UNP had come into power because its candidate had been elected president and thus the information about that candidate as an individual was information for the purposes of s.424A(1) and did not fall within the exception in s.424A(3)(a).

6. Contrary to that contention, I have concluded that the matter which was relevant to the Tribunal was the status of the UNP, not the success of the presidential candidate as an individual. True it is that in January 2015 the only UNP-associated individual whom the Tribunal identified to the applicant was its presidential candidate but the Tribunal’s reasons at para.28 of the decision record indicate that that person’s significance lay not in his achievement as an individual but as an exemplar of the success of the party whose candidate he was.

7. I find that the relevant information was the electoral success of the UNP, of which the election of its presidential candidate was presumably no more than the most obvious indication. Such information fell within a s.424A(3)(a) and so did not need to be given to the applicant pursuant to s.424A(1). Consequently, the fact the Tribunal did not give that information to the Tribunal pursuant to that provision does not amount to jurisdictional error.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 23 August 2018