AOO15 v Minister for Immigration

[2016] FCCA 2871

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOO15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2871

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal failed to consider with the applicant’s claim about the risk of his livelihood – Tribunal failed to exercise its jurisdiction – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), s.91R(2)

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

Applicant: AOO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 143 of 2015

Judgment of: Judge Smith

Hearing date: 26 May 2016

Date of Last Submission: 26 May 2016

Delivered at: Sydney

Delivered on: 26 May 2016

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the First Respondent: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The applicant have leave to file an amended application in the form of the amended application attached to the written submissions dated 17 May 2016.

2. A writ of certiorari issue quashing the decision of the second respondent dated 24 March 2015.

3. A writ of mandamus issue directed to the second respondent requiring it to determine the applicant's application for review of the decision of a delegate of the first respondent dated 27 February 2014 according to law.

4. The first respondent pay the applicant's costs set in the amount of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 143 of 2015

AOO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Sri Lanka who applied for a protection visa on 29 October 2012, on the basis of his ethnicity, namely that he was Tamil and that he was a fisherman in the north of Sri Lanka whose livelihood was at risk because of an influx of Sinhalese fisherman. His application was rejected by a delegate of the Minister on 27 February 2014 and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. The Tribunal affirmed the delegate's decision on 24 March 2015. The applicant now seeks judicial review of the Tribunal's decision.

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

Ground one

1. The sole ground pressed by the applicant is that the Tribunal failed to consider, and deal with, the applicant's claim that his livelihood was at risk because of the influx of Sinhalese fishermen. There is no real dispute between the parties as to the principles that are to be applied. The question is simply an application of those principles to the facts of the case. That will require some close attention to the way in which the applicant’s livelihood claim was made by the applicant, as well as to the reasons of the Tribunal.

2. Because of the narrow issue, I will not spend any time detailing the other claims made by the applicant but will focus instead on the livelihood issue. It is fair to say, as the Minister submitted, that this claim was only faintly put at first instance in the application for a protection visa. At [33] of the statement supporting that application the applicant said:

   During the meeting I openly voiced my concerns which were also concerns of the other Tamil fisherman [sic]. I opposed such a move as this would seriously impact our ability to survive. The CID asked for my phone number that day and I had to give them my number.

3. In the statement the applicant goes on to describe a series of events whereby he went to the CID camp and was threatened with death if he did not keep quiet. In written submissions made by the applicant's agents to the department in support of the protection visa application, there was reference to country information concerning Sinhalese fishermen. Amongst those were the following extracts:

   Another rich deep sea fishing coast, Valaip-paadu in Mullaiththeevu, known for its seine fishing has also now completely gone into the hands of the Sinhalese. Earlier it had seine beaches traditionally allotted to local fishermen as well as fisherman from Mayiliddi in Jaffna and Udappu (a Tamil village) in Puththa’lam.

   From Mullaiththeevu to Kokku’laay, the entire coast is now a monopoly of Sinhala fishermen who have come with hundreds of boats, while the resettled Tamil fisherman of the land cannot get into the waters.

4. The submission continued:

   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. There is evidence of many Tamils having lost their traditional lands since the LTTE was militarily defeated in 2009. Such policies have been carried out by the GOSL [government of Sri Lanka] or at the direction of the GOSL with the objective of ethnically cleansing the country's minority Tamils.

   …

5. In a submission to the Tribunal prior to the hearing the applicant's agents took up the theme that had been developed by their earlier submission. That submissions set out the following:

   …

   Targeting of Tamil Fishermen in the North: Available information supports the claims by the claimant that Tamil fishermen in areas in the North have become the victim of severe and discriminatory restrictions imposed by the Sri Lankan Navy, resulting in a serious threat to the applicant's capacity to earn a livelihood and to subsist. In that regard, section 91R(2) of the Migration Act notes that instances of 'serious harm' for the purpose of assessing persecution includes:

   •significant economic hardship that threatens the person's capacity to subsist;

   •denial of access to basic services, where the denial threatens the person's capacity to subsist;

   •denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   A variety of reports continue to refer to additional military registration requirements being' imposed discriminatorily on Tamil fishermen in the North and East. These restrictions have been seen to be impact on the livelihoods of these fishermen and resulting in economic hardship to them and their families. This is supported in the UNHCR's eligibility guidelines published in December 2012 at page 24 that makes reference to the particular constraints encountered in “many areas of the north, including parts of Jaffna, Mullaitivu, and Mannar districts” that are being seen to “affect the livelihood opportunities for returnees” to these areas.

   Further to this an article published by Groundviews in November 2011 titled “Post-war situation in Northern Sri Lanka & Prospects for Reconciliation” elaborated further on the ongoing challenges faced by Tamil fishermen in the North particularly as a result of ongoing interference by the military in fishing activities in this region. As this article reported:

   “A major obstacle to develop livelihoods based on local resources has been the military encroachment into livelihood activities. The military regulates fishing, issuing passes to go to sea. Fishermen in Mannar district showed us three separate forms that require 30 signatures plus photos and additional documents, to enable fishermen to go fishing.

   Some Northern Tamil fisherman allege that military often gives special privileges to Sinhalese fisherfolk from the South. The report tabled TNA MP Sumanthiran notes that while there are restrictions on fishing by Tamil fishermen in villages in Mullativu district such as in Kokkilaai to Chundikulam in Kilaakaththai, Maathirikkiraama, Uppumaaveli, Thoondai, Alambil, Semmalai, Naayaaru, Kokkuththoduvaai, and Karunaattukkernee, Sinhala fishermen in the area have received direct permission to fish in this area from the Ministry of Defense. He also claims that while Sinhalese fishermen are given preferential treatment to fish in the North, Tamil fishermen are not given reciprocal permission to engage in fishing in the South. Mr. Sumanthiran also reported that “people returned by the government to Uduththurai in Maruthenkerny (Vadamarachchi East), were soon after evicted from their houses along the coast and placed in transit camps on the other side of the coastal road. These houses are now being occupied by people brought from the South who are permitted by the Ministry of Defense to engage in diving for coral and starfish.”

   A report published in December 2011 by an independent, non-partisan Sri Lankan organization known as the Centre for Policy Alternatives (CPA) titled “Land in the Northern

   Province: Post-War Politics, Policy and Practices” also refers to growing concerns over the discriminatory treatment of Tamil fishermen in the North East in the post-war period particularly arising from state supported migration of Sinhalese to the area and the “biased granting of fishing permits.” The arrival of Sinhalese farmers and fishermen to the areas has been seen to lead to competing claims over plots of lands and challenges by Tamil fishermen with fishing rights and access to secure areas.

   In relation to the issuing of fishing permits, a March 2012 report by The Social Architects titled “Salt on old Wounds: The Systematic Sinhalization of Sri Lanka's North, East and Hill Country” confirms that Tamil fishermen believe new licenses are being issued to Sinhalese fishermen with the assistance of the military, while they experience challenges having licences renewed. As the report observes:

   Recently, it has been reported that the Minister of Fisheries has been discriminating against Tamils by not renewing their fishing permits. Currently, Sinhalese people obtain fishing permits easily in Mullaitivu with the assistance of the military as the renewal process is taking place at the Divisional Secretariat.

   While Tamils in Mullaitivu have only been given temporary permits recently, the State gives Sinhalese people permanent permits with little hesitation. To be clear, many Tamils have applied for permanent permits, but those have not been granted by the State. Additionally, in Nanthikadal', adhering to the “pass system” is very important. (This area is located in one of Mullaitivu's de facto High Security Zones). Yet only Tamils have to abide by this pass system. Sinhalese are free to fish in this area whenever they want. These Sinhalese people have been coming from Negombo, Puttalam and Chilaw.

   Tamil organisations believe the discriminatory treatment being encountered by Tamil fishermen is motivated by a push towards “a militarized and ethnicised monopoly” of the fishing industry by the Sinhalese in Sri Lanka.

   The ethnic-based imposition of costly registration requirements and restrictive limitations on when and where Tamil fishermen can fish deliberately creates economic hardship and effectively denies them the capacity to earn a livelihood.

   …

   (Emphasis in original, citations omitted)

6. It may be noted that the information set out in those passages was contained in reports as late as 2012 but including earlier reports in November 2011 and December 2011. That is of note because it is clear that the applicant, who had been displaced a number of times due to, amongst other things, the civil war in Sri Lanka, had re‑established his fishing business sometime after April 2010 when he was released from captivity by the Sri Lankan authorities, following the defeat by the Sri Lankan army of the Liberation Tigers of Tamil Eelam (LTTE) forces.

Tribunal’s decision

1. The Tribunal made its decision on 24 March 2015. It is fair to say, as the Minister submitted, that the Tribunal’s reasons revealed that it was, at the very least, aware of the livelihood claim. It said, for example, at [136]:

   Further, that the attempt to grant fishing permits to Sinhalese in a situation where there is obvious Sinhalisation of the country the applicant's livelihood is at risk.

2. That paragraph was reporting a submission made by, or on behalf of, the applicant at the hearing conducted on 13 March 2015. Further, at [180] in the findings section of the Tribunal's decision the Tribunal said:

   For whatever reason, he was checked, he was cleared and he was ultimately released. He claimed he was given an ID card and was able to return to his home area where, eventually he was provided with basic shelter and, not without difficulty, set up to earn his living, fishing once again.

3. At [182] the Tribunal said:

   By his claims, the only period in recent times when he attempted to stand against the authorities in issuing licences or permits to Sinhalese fisherman to enter his area for fishing.

4. After that passage the Tribunal spent some time analysing and determining what it considered was the applicant's pivotal claim concerning serious harm which had occurred to him and which might occur in the future. That is, the claim involving the CID to which I referred earlier, including the meeting at which the applicant claimed to have raised his concern about the Sinhalese fishermen. The Tribunal found that there were a number of inconsistencies in the applicant's account and, for that reason, found that the account was not genuine and had been concocted to give weight to a protection claim which would not otherwise have had strong grounds.

5. It gave the applicant's account no weight and found that he was not called into the CID or army base, nor was he required to report several times a week for the next 40 to 50 times or even the next 15 to 20, depending on his claims. It then made a series of findings. At [197] the Tribunal found:  

   (i)The applicant is Tamil.

   (ii)He is from Mullaitivu in the North of Sri Lanka.

   (iii)He was the president of his local fishing cooperative.

   (iv)He was required to carry out certain tasks for the LTTE when they were in control.

   (v)He was taken in to a Sri Lankan Army centre for a year.

   (vi)He was vetted by the CID.

   (vii)He resumed his position as president of his local fishing cooperative.

   (viii)Sri Lankan fishermen did apply for licenses to fish in the area.

   (ix)He left the country illegally

6. Subparagraph (viii) is of some concern because the reference to Sri Lankan fishermen, there does not make any sense in the context as there was no evidence or suggestion that anybody other than Sri Lankan fishermen were applying for licences. I take the reference, in fact, to be a mistaken reference and should have been to Sinhalese fishermen.

7. However, it was a typographical error, in my view, and does not suggest any jurisdictional error. Indeed, it is not relied upon by the applicant in his argument. The following paragraphs are then critical to the determination of these proceedings.

   [198]The applicant has provided a consistent account of his experiences through the years of conflict in a totally Tamil area as president of a fishing cooperative made up of Tamil members.

   [199]He has also described periods of severe hardship as a consequence of natural events from a tsunami and then the process of reintegration at the end of a thirty year long war.

   [200]He, like most other people in his area, was taken into so called rehabilitation camps. While in that camp he was checked by the CID, kept for a year and then provided with an ID and allowed to return to his home area

   [201]He was rehabilitated in his home village and was provided with basic housing

   [202]By his own account he has been able to move back to his home area, re-establish himself as a fisherman and to be registered through the department of fisheries.

   [203]I accept that there is discrimination and that it is evidenced in reports such as the US State Department Country Reports on Human Rights Practices.

   [204]However, the discrimination described in that report and the applicant's experiences as Tamil lead me to find that he has not faced harm of the gravitas such as that given in the examples of s.91R (2) of the Act.

   [205]Given that his past experiences were at a time when Tamils were suspect because of their race I find that there is no real chance of serious harm in the reasonably foreseeable future now that the immediate period of tension has passed.

8. The Tribunal then went on to deal with the other claims made by the applicant and concluded that it was not satisfied that the applicant satisfied either of the relevant criteria for the grant of a protection visa and so affirmed the decision under review.

Consideration

1. The principles relevant to the issue in this case, as I have said, are not particularly an issue and they are well‑established. In WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at 4, the Full Court of the Federal Court, French, Sackville and Hely JJ said at [45];

   In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:

   ‘… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;’ (s 36(2)(a) read with s 415(1))

   The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. 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.

   (Emphasis in original)

2. Their Honours then dealt with the obligation to set out reasons before continuing at [47];

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. 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.

   See also NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1, 18‑20; [2004] FCAFC 263 and in particular [58].

3. The applicant argued that the inference that the Tribunal failed to consider the livelihood claim can be drawn from the following matters: first, the subheading, above [198] being “Consideration of the applicant's claim for reasons of race, Tamil”, suggested the Tribunal was considering a general claim by the applicant of discrimination because he is a Tamil and not the more particular Tamil fisherman livelihood claim which requires consideration of economic discrimination experienced by Tamil fisherman from the Mullaitivu District.

4. Secondly, he argues that at [198] to [202] the Tribunal set out background facts of the discrimination claimed which concluded with the applicant re‑establishing himself as a fisherman. The applicant argued, however, those were not the background facts to the livelihood claim. Rather, the applicant argued that that claim involved a more recent set of background facts including that Sinhalese fishermen with army and government support were taking over the fishing rights of Tamil fisherman in Mullaitivu which would cause the applicant to lose his livelihood.

1. The applicant's third point was that in [203] and [204] the Tribunal found that there was discrimination and based that on a US Department country report on human rights practice. However, the extract of that report in the Tribunal's reasons focussed on general discrimination by Tamils in Sri Lanka but not on the particular discrimination against Tamil fishermen as was suggested in the livelihood claim. The Minister argued that it could not be inferred that the Tribunal was unaware of the livelihood claim and relied principally on the reference to that claim at [136] of the Tribunal's reasons which are set out above, as well as to the Tribunal's findings at [180], [202] and [215] to the fact that the applicant had re-established his fishing business, although not without difficulty.

2. The applicant also submitted that the factual premise upon which the livelihood claim depended was the fact that he had suffered a threat to his capacity to earn a livelihood and that the Tribunal dealt with that by its finding at [202] which I have set out above. In essence, as I understand the Minister's submissions, it was not necessary for the Tribunal expressly to make a finding with the livelihood claim because it had made findings which undermined and conclusively dealt with those claims. Those findings were, in effect, that the applicant had in the past been able to re‑establish himself as a fisherman and to be registered through the Department of Fisheries, that he had not faced harm of such gravitas in the past such as those given in the examples of s.91R(2) of the Migration Act 1958 (Cth).

3. In my view, the Tribunal did not properly deal with the livelihood claim. I accept the Minister's submission that the Tribunal was aware of the claim and it is likely that it thought that it had properly dealt with the claim by making a finding that the applicant had, in the past, been able to re‑establish himself as a fisherman to be registered through the Department of Fisheries. However, in my view, the Tribunal stopped short of properly dealing with the entirety of the claim. There are a number of reasons for that. Those reasons, however, do not include the subheading above [198]. I do not accept that is any indication of what the Tribunal had in mind, apart from that it was dealing with something which was different from political opinion, illegal departure or the applicant being a failed asylum seeker.

4. What the Tribunal did not deal with was the future prospect of the applicant returning to his home in the Mullaitivu region. It did not deal with that in light of the clear and uncontested evidence from independent sources, that there was a process of Sinhalisation in that area affecting fishermen which was driven by, if not simply condoned, by the government. It may well be that as the Tribunal found, the applicant had, after being released in 2010, been able to obtain a licence and to establish a fishing business after some initial difficulty. However, that does not grapple with the fact that the claim was not a concrete claim based on past events. There was, according to the evidence, which was as late as December 2012, a process being undertaken which clearly had the possibility of affecting the applicant who was both Tamil and a fisherman and lived in the north of Sri Lanka.

5. The fact that the Tribunal made its decision based solely upon what had happened to the applicant in the past is clear from [204] and [205] of the Tribunal’s reasons. At [204] the Tribunal simply found that the applicant had not faced harm in the past. There is no finding there that he would not in the future. The future comes in [205]. There is some difficulty with that paragraph, however, because it is based upon the suspicion that Tamils were suspected of connections with the LTTE. The fact that the Tribunal's reasoning then was based simply on the fact that the “immediate period of tension had passed”. The difficulty, however, with that conclusion is that the process of Sinhalisation, if I can refer to it as that, had, on the material, nothing to do with the LTTE. It was based upon Tamil ethnicity and nothing else or, perhaps, more accurately, Sinhalese ethnicity because it was a process, on the material, apparently aimed at improving the economic fortunes of Sinhalese to the detriment of Tamils.

6. For that reason there is no real logic in the finding at [205] that connects the conclusion in it to the claim concerning the livelihood as a fisherman. Further, I accept the applicant's submission that it is important that the US Department information referred to at [203] as summarised by the Tribunal at [149] and following its reasons, did not, in fact, refer to the specific type of discrimination relied upon in the livelihood claim. That suggests to me that in its findings at [203] and [204] the Tribunal did not have in mind that particular claim. However, even if it did, as I have said, it focussed wrongly and indeed solely, upon the past events without properly assessing the future likelihood of harm coming to the applicant in the form of economic hardship in light of the Sinhalisation of the north of Sri Lanka.

Conclusion

1. For those reasons I conclude the Tribunal did not complete the process of review that it was required to do pursuant to s.414 and so constructively failed to exercise its jurisdiction. For that reason I will grant the orders sought by the applicant.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 10 November 2016