AOL15 v Minister for Immigration
[2017] FCCA 92
•2 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOL15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 92 |
| Catchwords: MIGRATION – Application for protection visa – whether the Applicant made claim to fear harm because of his membership of a particular social group; and internally displaced person – held that the Applicant did not make this claim – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5L, 36(2)(a), 36(2)(aa) |
| Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 |
| Applicant: | AOL15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 865 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 11 October 2016 |
| Date of Last Submission: | 11 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Batten |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The Application for judicial review be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 865 of 2015
| AOL15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) made on 10 April 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) refusing to grant the Applicant a Protection (Class XA) visa (“the visa”).
By his Amended Application for judicial review filed on 29 August 2016, the Applicant’s ground of review is as follows:
1. The Tribunal erred by failing to correctly construe and deal with a claim or component integer expressly raised by the applicant or otherwise squarely raised on the material before it and/or failed to take into account a relevant consideration.
Particulars:
(a) The Applicant claimed that he was a “refugee” in Sri Lanka (CB 84; Tribunal Transcript 29.8.2013 P6:28, P15:10-11, P24:15) and as a refugee faced many issues including his mother’s sister was beaten to death (CB 84,176). The applicant claimed he could not request protection from the authorities as the authorities support the Singhalese [sic] majority (CB 176) and as “refugees” the police would not help (CB 238 [35]; Tribunal Transcript 29.8.2013 15:10-11)
(b) The Tribunal did not consider and address the claim or component integer thereof, or relevant consideration, identified in subparagraph (a).
(emphasis in original)
The Applicant is a citizen of Sri Lanka, is of Tamil ethnicity and is a Muslim. He applied for the visa on 6 December 2012.
Having regard to the Applicant’s written and oral submissions, the issue for determination raised by this ground of judicial review is whether the Applicant made a claim to fear significant harm as a member of a particular social group; namely as an Internally Displaced Person (“IDP”). The Applicant submits that he made such a claim and further, that a person who falls within the meaning of an IDP can be said to be a member of a “particular social group” within the meaning of s.5L of the Migration Act 1958 (Cth) (“the Act”). The Minister submits that the Applicant did not make a claim to fear significant harm because of his status as an IDP. There is no dispute that the Applicant made claims to fear harm because of his ethnicity, his religion, because he is a young Tamil Muslim and because he left Sri Lanka illegally. There is also no dispute that, whilst the Tribunal identified and dealt with these claims, it did not identify a claim that the Applicant feared harm because he was a refugee or an IDP. It follows that, in the absence of identifying such a claim, the Tribunal also failed to consider this claim.
The issue of the Applicant's status as an IDP arises because of his and his family’s history and because of incidents which he claimed occurred during the time that he was a refugee or an IDP. The Applicant’s parents were from Mannar, Sri Lanka, but were forced to move to Puttalam, during the conflict between the Liberation Tigers of Tamil Eelam (“LTTE”) and the Sri Lankan army, where they lived in a refugee camp for approximately twenty years (CB 84). The Applicant was born in the Puttalam district on 20 August 1995 (CB 84). He lived at the refugee camp until he departed Sri Lanka for Australia (CB 107). At the Tribunal hearing, held on 29 August 2013, the Applicant told the Tribunal that his family had returned to Mannar from the refugee camp and that they had done so because the refugee camp was not their home. The Applicant said, however, that they could not live there permanently because Sinhalese people had taken a lot of the homes there (CB 280 at [33]).
It is settled principle that the Tribunal’s review function requires it to consider all of the claims and integers of the claims put by the applicant: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”) at [55]-[57]. This obligation includes not only claims expressly put by the Applicant, but also claims that arise “squarely” on the material or are “apparent on the face of the material” before the Tribunal: NABE at [58].
The Applicant submits that, if a claim of apprehended persecution is based upon membership of a particular social group, the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the Applicant: NABE at [58].
It is also settled principle that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. As a Full Court stated in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (“WAEE”) at [45]-[46]:
45. … If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.
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.
In addition to the material in the Court Book, there is an affidavit sworn by Ms Amy Faram on 29 August 2016, which annexes a transcript (“T”) of the Tribunal hearing held on 29 August 2013, as prepared by Spark and Cannon.
Submissions
In oral submissions, Counsel for the Applicant noted that the Applicant referred to himself in his claims as a refugee, although the correct terminology would be as an IDP. I accept that, in context, where the Applicant refers to himself as a refugee, he is in fact referring to his status as a person forced to relocate within his own country; that is, an IDP. However, the question is whether the Applicant made a claim to be owed protection obligations by Australia for the reason that he is an IDP.
The Applicant submits, in his written submissions, that the claim arose for the following cumulative reasons (at [21]):
21.1 First, the applicant identified himself as a refugee in Sri Lanka. He claimed his parents initially lived in Mannar “but could not live there anymore”. His parents moved to Puttalam and lived in a refugee camp for approximately twenty years (CB 84). During the hearing he referred to himself (and his family) as being refugees.[1]
21.2 Second, the issues the applicant claimed he and his family faced stemmed from the fact they were living in the camp as refugees: “While living in this camp we faced many issues.” (CB 84, 176) The applicant identified the following examples:
[1] Transcript of hearing before the Tribunal on 29.8.2013 P6:28, P15:10-11, P 24:15.
i. his mother’s sister was beaten to death (CB 84, 176);
ii. there were two home invasions (CB 238 [23], 176);
iii. when the applicant was approximately fifteen years old in the camp young Tamil Muslim boys were being kidnapped (CB 85);
iv. a grease man would come during the night to the camp. (CB 85)
21.3 Third, the applicant expressly claimed that he could not request protection from the authorities as the authorities support the Singhalese [sic] majority (CB 176) and as “refugees” the police would not help (CB 238 [35], T 15:10-11)
(emphasis in original)
The Applicant claims that his status as a refugee did not end when his family left the refugee camp. He argues that his evidence before the Tribunal was that his relatives would not be able to help him if he returned to Sri Lanka because they are all treated as refugees (T 24.15). The Applicant claims that he gave evidence to the Tribunal that, although his parents had left the refugee camp and moved to Mannar, they could not live there permanently because of problems with Sinhalese people (CB 280 at [33]). The Applicant further notes that, given the delay between the date of the Tribunal hearing (29 August 2013) and the date of the Tribunal decision (10 April 2015), there was no current evidence to suggest that his family continued to live in Mannar. Indeed, it is argued that it is more likely that they were not able to and would likely have resumed their status as refugees.
The Minister submits that the Applicant claimed to fear harm only on the basis that he is a young Tamil Muslim and will therefore suffer harm at the hands of the local Sinhalese community. He also claimed to fear harm because he left Sri Lanka in breach of the Sri Lankan departure laws and had sought asylum in Australia. The Minister argues that the Applicant did not claim to have individually suffered any difficulties with the Sri Lankan army or police or the Sinhalese community. The Applicant stated that two months earlier, somebody had tried to stab his mother in the family home, and that one month earlier, someone else had tried to attack his brother in the family home. The Applicant claimed that his family had not reported the attacks to the local police because they were refugees (CB 278 at [23]).
The Minister argues that, at the Tribunal hearing, the Applicant confirmed that his claims to fear harm arose because he was a young Tamil Muslim and because he had departed Sri Lanka in breach of the departure laws. The Tribunal asked the Applicant whether he feared harm for any other reason, to which the Applicant simply repeated that he feared harm because he was Muslim (CB 280 at [32]; T 13.10).
The Minister further submits that the Applicant’s claims in his statutory declaration attached to his visa application were framed on the basis that, while living at the refugee camp, he and his family were targeted by reason of their Tamil ethnicity. The Minister notes, as an example, that the Applicant claimed that, when he was around fifteen years old in the refugee camp, young Tamil Muslim boys were being kidnapped. The Minister also argues that the claims about his family being attacked at their home were raised in the context of the Applicant being the target of harm because he was a Tamil Muslim. The Minister submits that the Applicant’s reference to his aunt being killed by “unknown persons” at the refugee camp is not put on the basis that the Applicant claimed to fear harm. Therefore, the claim was not required to be considered by the Tribunal as it could not be said there was any causal connection between this incident and the harm feared by the Applicant or any ground in the Refugee Convention.
Consideration
For the reasons set out below, I am not satisfied that the Applicant made a claim to fear significant harm because he was, as he put it, a refugee, or an IDP.
Turning first to the Applicant’s statutory declaration attached to his visa application (CB 84-86), the Applicant’s claims are expressed as follows:
a)his parents initially lived in Mannar but, following the problems between the LTTE and Sri Lankan army, they were forced to relocate. They moved to Puttalam and lived in a refugee camp for approximately 20 years;
b)whilst living in the camp, he and his family “faced many issues”. For example, his aunt was beaten to death by an “unknown person.” This incident is not spoken about because his mother cries;
c)when he was about 15 years old living at the camp, young Tamil Muslim boys were being kidnapped. His father told him that they were being kidnapped by Sinhalese people in white vans and the dead bodies would be dismembered. He feared for his life so he took safety measures such as not going out at night, not going to school to study or going to play with his friends, because “[he] feared that [he] will be next as [he is] a young Tamil male”;
d)there was a “grease man” who came to the camp during the night to scare and torture people;
e)in Sri Lanka, there is no safety for Tamils because “[Tamils] have been targeted”;
f)he fears he will be targeted because he left Sri Lanka illegally and sought asylum in Australia, and because “[he is] a young Tamil male and [young Tamil males] are always discriminated against by the Sinhalese people”;
g)he will be mistreated by the Sri Lankan army and police if he were to return to Sri Lanka, as they will consider him to be a spy or traitor because he fled to a Western country;
h)the authorities are Sinhalese and target the Tamil population. Therefore, if he returns to Sri Lanka they will not protect him; and
i)accordingly, as a young Tamil male who has fled the country, he will suffer significantly.
A written submission, dated 27 August 2013, was provided to the Tribunal by the Applicant’s migration agent, on his behalf (CB 175-222). The following are relevant extracts from that written submission:
a)under the heading “Background Information”, it is stated that whilst the Applicant’s family resided in a refugee camp in Puttalam (CB 176-177):
... the applicant’s family suffered many issues. For example, he instructs that his aunt was beaten to death. Further, his mother was stabbed by a Singhalese [sic] person. The Applicant submits that despite the mistreatment his family cannot request protection from the authorities given they support the Singhalese [sic] majority in Sri Lanka.
The Applicant fears being kidnapped due to his race and religion. He submits that many other Tamil Muslims have been kidnapped and subjected to harm in Sri Lanka.
b)Under the heading “Persecution arising from Race”, it is stated (CB 177):
The Applicant instructs that he fears persecution in Sri Lanka because he is a Muslim Speaking Tamil.
c)Under the heading “Persecution arising from Religion”, it is stated (CB 177):
The Applicant submits that as a Muslim, he would be at risk of persecution if he was forced to return to Sri Lanka. He submits that the Sinhalese Majority regularly target individuals of Muslim faith. Furthermore, they are treated as outsiders and not provided with protection from the authorities. The Applicant instructs that the authorities specifically target Muslims even when they have done nothing wrong.
d)Under the heading “Persecution arising from ‘Membership of a Particular Social Group’”, it is stated (CB 181):
The Applicant also instructs that he fears persecution in Sri Lanka based on his membership of a couple of particular social groups; namely as a failed asylum seeker and returnee and as a young Tamil Muslim.
…
We further submit that the applicant can be considered a member of a particular social group, namely Tamil speaking Muslims.
e)Under the heading “Failure of Sri Lanka to Avail Protection”, it is stated (CB 184):
The Applicant instructs that he is not able to seek protection from the authorities in his home country, as it is the authorities that he fears persecution from.
We note country information included below signifies the fact that the Sri Lankan Authorities regularly perpetrate harm against individuals of ethnic and religious minorities.
f)Under the headings “Claims and Submission”, it is stated (CB 185 and 186):
The Applicant claims persecution for reasons of race, religion, imputed political opinion, and membership of a number of particular social groups.
…
The Applicant fears persecution of the basis of his race as a Muslim Tamil, his religion namely as a follower of the Muslim faith, and his membership of a number of particular social group [sic], namely as a returnee from a Western Country and a young Muslim Tamil.
The submission then contains reference to country information intended to highlight the issues faced by Muslims and Tamil speaking Muslims in Sri Lanka, and as returnees to Sri Lanka from Western countries or after having illegally departed Sri Lanka (CB 187-221).
I am satisfied, having regard to the Applicant’s statutory declaration and the written submissions of his migration agent, made on his behalf, that the Applicant’s claims to fear harm were by reason of his ethnicity as a Tamil, his Muslim religion, and by reason of his membership of particular social groups; namely, a returnee from a Western country, a returnee who illegally departed Sri Lanka and as a young Tamil Muslim.
I do not accept that a claim arises squarely on the material before the Tribunal that the Applicant claimed to fear harm because he was a refugee or IDP; or put another way, because of his membership of a particular social group, being a refugee or IDP. The fact that the Applicant might have referred to himself as a refugee, or that the incidents he relies on occurred at the refugee camp, is in my view, simply a reference by the Applicant to the context of his claims. There is nothing to suggest that the Applicant claimed to fear harm because of his status as an IDP. Indeed, in the written submissions made on his behalf by his migration agent, the Applicant's claims by reason of his membership of a particular social group were limited to his status as a failed asylum seeker and the fact he was a young Tamil Muslim. The written submissions repeated this claim twice. Further, the country information relied on and included in the written submission related only to the Applicant's claims to fear harm because of his ethnicity, his religion and his membership of the two particular social groups; a returnee from a Western country and the young Tamil Muslim male.
The Applicant gave evidence during the Tribunal hearing. When asked for the reason he believed that he will be harmed if he returned to Sri Lanka, the Applicant responded:
a)that as a Muslim, he would be assaulted and killed by members of the Sinhalese community, the army and the police (T 12.10-45);
b)because he left Sri Lanka illegally (T 13.10); and
c)because he is a Tamil (T 13.17-19).
During the course of the proceedings, the Tribunal member summarised the Applicant's claims in the following way:
… So I just want to summarise what you told me what your fears are. You fear that you could be kidnapped and beaten and possibly killed by the Sri Lankan army or police or other people in the Sinhalese community. You fear that harm because you are Tamil; because you are Muslim; I take it from what you're saying, because you’re a young Tamil man who may be moving around on his own. You also fear being harmed by the Sri Lankan army and police because you departed Sri Lanka in breach of the Sri Lankan departure laws and have sought asylum in a western country, Australia. Is that correct? (T 20.7)
The Applicant confirmed the summary (T 20.17). The Tribunal member then asked the Applicant whether he feared harm from anyone else, or for any other reason which he had not just summarised. The Applicant responded, “I believe that I will be killed because I am a Muslim. That is my firm belief ” (T 20.22).
The Applicant contends that he referred to himself as a refugee during the course of the hearing and, consequently, this constituted a claim to fear harm because of his membership of a particular social group; an IDP.
The Applicant relies on a reference made at T6.28. However, this is only a statement made by the Applicant that he lived with his parents in a refugee camp. Clearly, this is a reference to his living circumstances, and not a claim to fear harm.
The Applicant claimed during the hearing that his mother was attacked by Sinhalese people at their house at the refugee camp, around two months ago. His evidence was that windows were smashed but no one was harmed. He said that this incident was not reported because “we are refugees” (T 14.15 - T 15.10). Again, this is not a claim by the Applicant to fear harm because he is a refugee, but an explanation as to why the incident was not reported. I do not accept that this gives rise to a claim that he feared harm for reasons that he is an IDP. Finally, during the course of being questioned about the assistance he might receive from his relatives in Sri Lanka if he returned, the Applicant said they could not help them because “they are all treated as refugees” (T 24.15). Again, this does not amount to a claim that he would be harmed because he was a refugee. Rather, this was a statement that he could not rely on the support of his relatives because they are refugees.
Having considered the transcript, I find that no claim was made by the Applicant during the course of the hearing that he feared harm because of his status as a refugee or IDP. I note that in the submissions made by the Applicant's migration agent during the hearing, following an adjournment, submissions were made with respect to the Applicant's experience as a young Tamil male; not by reason of his status as a refugee or IDP.
I find, on the evidence before the Court, that the Applicant did not make a claim, either expressly or which arose from the material before the Tribunal, that he feared significant harm or any harm because of his membership of a particular social group; that being, a refugee within his own country or an IDP.
A further submission made by the Applicant was that the Tribunal failed to consider his claim that his aunt was killed by “unknown people.”
I agree with the Minister's submission that the Tribunal was not obliged to consider this evidence or integer of a claim. It is self-evident from the way in which the Applicant’s evidence about this incident was given, that he did not provide any connection between this incident and his claim to fear harm. In those circumstances, the evidence about his aunt’s death could not found a claim that he personally feared harm. The failure of the Tribunal to refer to this evidence in its decision record could not constitute jurisdictional error.
I find that the Tribunal did not engage in jurisdictional error on the grounds specified in the Applicant’s Amended Application for judicial review.
Conclusion
For the reasons set out in this judgment, Orders will be made dismissing the application for judicial review and requiring the Applicant to pay the First Respondent’s costs in a fixed amount.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 2 February 2017
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