ARB16 v Minister for Immigration

[2019] FCCA 2611

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARB16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2611

Catchwords:
MIGRATION – Application for protection visa – failure of applicant to demonstrate that he was owed refugee protection obligations – country information – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.36(2), 65, 422B, 424A, 425.

Cases cited:

Minister for Multicultural Affairs v SCAR [2003] 128 FCR 553.

Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611.
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332.
Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429.

Applicant: ARB16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 607 of 2016

Judgment of: Judge Egan

Hearing date: 10 September 2019

Date of Last Submission: 10 September 2019

Delivered at: Melbourne

Delivered on: 10 September 2019

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms. N. Campbell

Solicitors for the First Respondent: Clayton Utz

Second Respondent: Submitting appearance

ORDERS

1. The First Respondent’s name in these proceedings be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The application for review filed on 24 March 2016 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 607 of 2016

ARB16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka. He was born in 1984 in Jaffna.  He left Sri Lanka in July 2006 and went to Malaysia where he resided until February 2012.

2. On 12 December 2012 the applicant made application for a protection visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (the Act).

3. A delegate to the Minister refused to grant the visa on 26 June 2014.

4. The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision. On 26 February 2016 the applicant appeared before the Tribunal to give evidence and present his arguments. At that time he was assisted by an interpreter conversant in the Tamil and English languages. He was also represented at that time by a registered migration agent.

5. On 26 February 2016 the Tribunal affirmed the decision of the delegate not to grant to the applicant a protection visa. On 24 March 2016 the applicant filed an originating application for review of the decision of the Tribunal. The grounds of the application for review were as follows:

   1. The Tribunal jurisdictionally erred when it applied the wrong test of “low risk of being detained or persecuted” when it should have applied the “real chance test” in determining the application for protection by the applicant.

   2. The Tribunal has not assessed the applicant’s integer claim of being a young Hindu Tamil from the north of Sri Lanka with perceived LTTE links.

   3. The Tribunal is obliged to put on notice to the applicant any adverse concerns it may have but acted in haste by rejecting the application on the same day of the hearing and thereby breached procedural fairness.

6. At [5]-[18] inclusive of its reasons, the Tribunal relevantly set out the considerations which it must take into account for the purpose of assessing whether the applicant was owed refugee protection under the relevant s. 36(2)(a) provisions of the Act or, alternatively, pursuant to the provisions of s. 36(2)(aa) of the Act in respect of complementary protection which might be owed to the applicant.

7. The Tribunal did not misdirect itself as to its legal responsibilities in relation to what it was required to do pursuant to the provisions of the Act when assessing the applicant’s claims.

8. At [19] of its reasons, the Tribunal further recorded that the Tribunal had taken into account policy guidelines pursuant to Ministerial Direction No. 56 issued by the Department. 

9. In his supporting statutory declaration for the visa the applicant claimed as follows:

   Background:

   My name is (omitted) and I am a (omitted) year old male born in Jaffna, Northern Province, Sri Lanka. The following is only a summary of my claims for protection. It is not an exhaustive statement of the reasons why I cannot return to my country of origin. I will provide further information in relation to my present claims during my interview with the POE officer. An Entry interview was conducted with me on 21 September 2012 with a DIAC officer. During that interview I was asked to provide my claims in a brief form which is why not all my claims were given at that stage. Also I have not been explained what is relevant and what I am required to disclose to the Department for the purpose of assessment of my claims.

   My citizenship is Sri Lankan only. My ethnicity is Tamil and my religion is Hindu. I am not married and have no children. My father and mother are alive and remain living in my home village, along with an unmarried sister. I have four brothers, who are all residing overseas in England, and two sisters who are also abroad, one in England and the other in Canada.

   I have lived in Sri Lanka for my entire life up until I fled to Malaysia through Singapore in mid 2006. My village, (omitted), is in the north of Sri Lanka, an area which was largely controlled by the LTTE during the war. For this reason I was having problems and I decided to flee. I fear returning to Sri Lanka because I am Tamil, and despite the end of the war, we are still persecuted and discriminated on a systematic basis. I also believe that I would be specifically targeted.

   Why I left my country:

   BACKGROUND IN COUNTRY OF FEARED PERSECUTION

   For many years Tamils in Sri Lanka have been marginalized and persecuted by the government authorities, including the Army, security forces and the CID, due to our perceived involvement with the LTTE and the animosity towards us because of the long and bloody civil war.

   I first left my area when I was still in school, due to the danger because of the war. There were many kidnappings and killings going on. I therefore moved with my family and did a couple of years of private tuition in Colombo to stay safe. I returned to complete school in my village as things had calmed down. Some peace talks had taken place and things had settled somewhat and I decided that I wanted to be with my family. I was unable to finish my school back in Sandilippai because of the war.

   INCIDENTS THAT LED TO ME FLEEING THE COUNTRY OF PERSECUTION

   During the more peaceful time, the LTTE established a presence in our village by opening their political office there. When the warring started again, the LTTE closed their office and ramped up their campaign and activities in my area. During this time I was undertaking my final year exams. I was not able to finish my schooling because of this. There were bombings in my area, people were being killed, and the Army had a presence there through an army camp. We had pressure coming from both sides.

   The LTTE used to come to me asking me, as a student, to help them with things like Heros Day and Remembrance Day functions. Other people such as bus drivers, other students, and taxi drivers were being asked to do this also. It was known that if people agreed to do this once, they would be required to do more down the track, and would be further involved in the organisation.

   I refused to do this because the Army was also present in the area and they would regularly patrol and take video's of people in order to discourage them from associating with the LTTE. As I refused, the LTTE became angry and abducted me. I was blindfolded.

   They took me to an unknown place and interrogated me, trying to force me to do what they asked of me. I told them that I would not as I did not want trouble with the Army and that I would report them to the authorities if they hurt me. They told me that if I dared to do this they would kill me and my family. They then beat me to my head very badly until I passed out. I received head injuries. I was told later that I had been dumped in the village and was taken to the hospital by some local people.

   I did not return to my home but lived in uncle's house in a different village as I feared harm from the LTTE, thinking they would come back for me. I stayed there for about 1-2 months before I left for Colombo.

   In Colombo, I tried to keep a low profile. As I was not able to finish school in my area, I was thinking of trying to finish school there, however it was dangerous as a Tamil in this city and I had significant trouble getting around. I was told by my parents that the Army had shot a number of LTTE in my village, and following this some LTTE came to my parents asking them where I was. They believed that I had informed the Sri Lankan authorities about their whereabouts and had tipped them off. They said they would find me and kill me.

   In Colombo, there were bomb blast occurring regularly and the Army was also checking all over the city for LTTE associated Tamils. Coming from northern Sri Lanka, I was afraid that I would be seen as a possible threat and be arrested by the authorities, I was also afraid that the LTTE would send people to Colombo to find me and kill me. I remained in Colombo as long as I could organise a smuggler to get me a visa to leave the country for Malaysia.

   After I left, my mother and father continued to inform me that they have been approached at their home by the Army who would ask where the remainder of the family was. The LTTE would also come. They were also telling me of things that were still occurring in Jaffna; killings and violence, which I was also aware of prior to fleeing. At this stage, all my siblings who are now overseas had already left the country. Apart from my sister who remains with my parents, I was the last sibling to flee Sri Lanka. They too fled because of the same dangers.

   What I fear might happen if I go back to my country:

   I believe if I return to Sri Lanka, the government authorities will come after me and the LTTE would also look for me. Since fleeing, the authorities have come to my home many times, as I have been advised by my parents.

   I am afraid that the Army now believe I have fled because of my involvement with the LTTE and because I have something to hide. If I was to return, I would be apprehended, tortured and even killed by the authorities on suspicion of my LTTE involvement.

   Who I think will harm or mistreat me if I go back:

   I believe that the Sri Lankan authorities, including the Army, security personnel and various CID groups will arrest me and kill me on suspicion of LTTE involvement. The government still searches for former LTTE cadres. I am also afraid that the LTTE will also be after me since they believe that I fed the government information about them leading to some of them being killed in my home area.

   Why I believe they will harm or mistreat me if I go back:

   I am a Tamil from Jaffna, a former LTTE controlled area, and the authorities will know that I have fled overseas for a long time. They will suspect me of LTTE involvement in the past and their suspicions will only be made stronger as I have been out of my country since 2006.

   They are especially suspicious of young male bachelors such as me, who would have more reasons to be part of the LTTE without a family or responsibilities.

   Why I believe that the authorities in my country will not protect me if I go back:

   The Government of Sri Lanka is the one which persecutes me, through its many surveillance and policing branches. They would not protect a Tamil given they consider me an enemy due to the civil war. They will think I have fled because of my involvement.

   Why I believe I will suffer significant harm:

   I am a Tamil from northern Sri Lanka, where the LTTE were very active during the civil war. Given I have fled overseas in 2006, the authorities will arrest me if I return and impute me with LTTE connections. They will torture me for information, and will kill me because they will believe I have something to hide. The government wants to eradicate all former LTTE members and to make sure that the civil war could never again start. There is much animosity against Tamils just based on our race and place of birth.

   Why I cannot relocate:

   Government authorities are present throughout Sri Lanka and they suspect Tamils of LTTE involvement just based on our race and place of birth. I am further suspected now that I have fled the country for a long time. My ID card lists my birthplace and that I am Tamil, so I would be identified anywhere. I have never worked in Sri Lanka and have been outside my country for over 6 years. I will be seen as an outsider if I went back. While on the surface there is no war, the government continued to abduct suspected LTTE members, and I still believe that the LTTE are operating underground and in splinter groups. The threats I had against me will continue wherever I am in Sri Lanka as my circumstances make me suspicious.

   My parents and youngest sister have undergone interviews for migration to Canada after my sister in Montreal has sponsored them. When they leave Sri Lanka, I will have nobody there anymore.

   I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.

   Declared by (omitted) on 11 December 2012 after the same had been translated by Raxana Mangalanathan (AIS ID 16752) from the English Language to the Tamil Language.

   (Signature of (omitted))

   (omitted)

10. When determining the claims before it, the Tribunal relevantly:

    a)identified the applicant’s claims ([21]-[22] of Tribunal reasons) and found the applicant to be a generally credible and consistent witness who did not appear to embellish his evidence. ([24] of Tribunal reasons).

    b)found the risk of the applicant being seriously or significantly harmed in the reasonably foreseeable future by the LTTE if returned to Sri Lanka to be remote ([25]-[28] of Tribunal reasons).

    c)found the chance or risk that the applicant would be persecuted or significantly harmed on account of his being a Tamil to be remote ([31]-[32] of its reasons).

    d)did not accept that the applicant faced a real chance of persecution or risk of significant harm on account of either his being a Tamil or by reason of his actual or imputed political opinions, or otherwise as a member of a particular social group ([33]-[34] of Tribunal reasons). 

    e)accepted that Sri Lankans with an actual or perceived association with the LTTE could face a risk of harm if returned to Sri Lanka and that that also applied to people who had such a profile who had returned to Sri Lanka from abroad ([38] of Tribunal reasons).

    f)was not satisfied that returnees to Sri Lanka were generally regarded as having links with the LTTE, or as being opposed to the government simply because they had been in Australia, or otherwise that as a returnee from a western country they would be seen as having links to the LTTE ([38] of Tribunal reasons). 

    g)did not accept that the applicant faced a real chance of persecution or risk of significant harm, at the time of the decision or in the reasonably foreseeable future, if the applicant was to be returned to Sri Lanka as a failed asylum seeker ([40]-[41] of Tribunal reasons);

    h)did not accept that the applicant faced a real chance of persecution or risk of significant harm, at the time of the decision or in the reasonably foreseeable future, for reasons of his religion, religious observance or any imputed LTTE political opinion ([42]-[44] of Tribunal reasons);

    i)found that the applicant’s fear of persecution was not well founded after having considered the applicant’s claims both individually and cumulatively ([45]-[46] of Tribunal reasons);

    j)found that the applicant was not a person in respect of whom Australia owed protection obligations either pursuant to the provisions of s. 36(2)(a) or s. 36(2)(aa) of the Act.

11. As to Ground 1 of the application for review, it is asserted that the Tribunal fell into jurisdictional error by applying the wrong test of “low risk of being detained or persecuted” when it should have applied the “real chance test” in determining the application for protection by the applicant.

12. First, it should be noted that the Tribunal did, at [13] of its reasons, specifically refer to the “real chance test”. It did so as follows:

    [13] Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. Second, the Tribunal did not, in its reasons, refer to there being a “low risk of the applicant being detained or persecuted”.

14. The Tribunal appropriately considered whether or not the applicant would be detained or persecuted upon his return to Sri Lanka. It accepted that those with an actual or perceived association with the LTTE could face a risk of harm in Sri Lanka, but it was not satisfied that returnees were generally regarded as having links with the LTTE, or as being opposed to the government simply because they had been in Australia. The Tribunal did not accept that the applicant would be found to be a supporter of the LTTE.

15. The Tribunal accepted that, upon return, the applicant would be questioned by authorities, and that his identity would be checked. It further accepted that there was a real chance that the applicant would be contacted at his home by the military or the police for further registration or interviews and that the applicant may be monitored. The Tribunal did not accept, however, that such treatment would amount to serious or significant harm, finding that the chance or risk of the applicant being seriously or significantly harmed was remote ([36]-[39] of Tribunal reasons).

16. At [24]-[28] of its reasons, the Tribunal closely considered the applicant’s claims that he feared harm if returned to Sri Lanka. In rejecting such contention on the part of the applicant, the Tribunal made reference to it having considered the applicant’s claims as well as country information when arriving at its decision.

17. At [29]-[37] of its reasons, the Tribunal closely examined the content of country information to which it had had regard. At [37] of its reasons, the Tribunal noted that it had had particular regard to DFAT country information on point. The Tribunal accepted that those with an actual or perceived association with the LTTE who had a profile could face a risk of harm in Sri Lanka, but the Tribunal was not satisfied that the applicant would be regarded as a supporter of the LTTE, or otherwise as someone with links to the LTTE upon his return to Sri Lanka.

18. At [40] of its reasons, the Tribunal did not consider that the applicant faced a real chance of persecution if returned to Sri Lanka on the basis of his being a failed asylum seeker. At [41] of its reasons, the Tribunal found that, based on the applicant’s individual circumstances and the independent country information, it was not prepared to accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm on that basis. There is no merit to ground 1 of the application for review.

1. As to ground 2 of the application for review, it was asserted that the Tribunal had not assessed the applicant’s integer claim of being a young Hindu Tamil from the north of Sri Lanka with perceived LTTE links.

2. At [43]-[46] inclusive of its reasons, the Tribunal made reference to the applicant’s “individual circumstances” both individually and cumulatively. The Tribunal assessed the applicant’s circumstances and came to the conclusion that there was no real risk that he would suffer significant harm on the basis of any imputed LTTE political opinion due to his race or because of other religious reasons. It cannot be said that the Tribunal did not appropriately deal with all of the issues before it, including the question of the effect, if any, of the applicant being a young hindu-tamil man.

3. At [21] of its reasons, the Tribunal clearly noted that the applicant was a Hindu Tamil born in 1984 in Jaffna who had had some past, but minor, involvement with the LTTE. This ground is without merit.

4. As to Ground 3 of the application for review, it was asserted that the Tribunal was obliged to put the applicant on notice of any adverse concerns it may have, and that it acted in haste by rejecting the application on the same day of the hearing, thereby allegedly breaching procedural fairness obligations due to the applicant.

5. The Tribunal’s obligation to afford procedural fairness must be looked at in the context of the provisions of s. 422B of the Act. s. 422B of the Act provides as follows:

   Section 422B

   Exhaustive statement of natural justice hearing rule

   (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

   (3) In applying this Division, the Tribunal must act in a way that is fair and just.

6. Division 4, part 7, of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters which it deals with. As to its obligations pursuant to the provisions of s. 424A and s. 425 of the Act, those were not enlivened in this matter. The applicant had been appropriately invited to attend, and had attended the hearing before the Tribunal in accordance with the provisions of s. 425 of the Act. He had the assistance of a representative who also attended the hearing and who had filed submissions on his behalf. The Tribunal engaged with the applicant in respect of his claims, and the applicant was given the opportunity to discuss his claims freely and to participate fully at the hearing.

7. He was given the opportunity to address all matters of relevance and to make arguments in support of his claims. The applicant was given a meaningful hearing invitation. [1]

   [1]        Minister for Multicultural Affairs v SCAR [2003] 128 FCR 553 at [37]-[41].

8. Interpreted at its widest, and as so treated by the first respondent, the assertions in ground 3 of the application for review could be treated as assertions of apprehended bias. The mere timely decision making of a member of a Tribunal does not without more constitute the basis for any reasonable apprehension by a fair-minded lay observer that the Tribunal member was biased or that the tribunal had not properly engaged with the applicant’s claims. The reasons of the Tribunal ran to 50 paragraphs. The reasons are carefully constructed and sequentially logical.

9. It cannot be said that no other rational or logical decision maker could not have made the same decision as did the Tribunal. [2]

   [2]        Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [130].

10. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] – [76] where it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

11. No bias has been demonstrated on the part of the Tribunal. This ground is without merit. The Tribunal arrived at its decision having considered all relevant matters before it. It made factual findings in an ordered fashion. It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact. [3]

    [3]        Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [26-] [27].

12. The applicant has not established any jurisdictional error on the part of the Tribunal.

13. The application for review is without merit and is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 18 September 2019

CORRECTIONS:

1. Paragraph 9 has been amended to omit identifying information of the Applicant.