ARM15 v Minister for Immigration
[2017] FCCA 108
•25 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARM15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 108 |
| Catchwords: MIGRATION – Review of a decision of the Refugee Review Tribunal – refusal of a Protection (class XA) visa – no jurisdictional error – application dismissed – costs. |
| Cases cited: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | ARM15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1008 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 17 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 25 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Khorn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Mr Leerdam |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $4,700.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1008 of 2015
| ARM15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant proceeds on an amended application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 13 April 2015. In that decision the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Protection visa (Class XA).
The amended application was filed on 3 October 2016. Written submissions of the Applicant were also filed on that day. The amended application was filed out of time, being not in compliance with earlier orders of the Court as to the filing of documents. The Court granted leave to the Applicant to rely upon the amended application and submissions filed.
The Applicant’s amended application contains five grounds. Ground number two is not pressed by the Applicant. Grounds one, three and four allege that the Tribunal fell into jurisdictional error by failing to consider relevant considerations including claims, integers of claims and/or information before the Tribunal. Ground five alleges the Tribunal fell into jurisdictional error by making findings that were contrary to probative evidence and were illogical or unreasonable. The Applicant sought orders that the decision of the Tribunal be quashed and that writs issue with the matter being remitted to the Tribunal to be heard by a differing presiding member. The Applicant sought his costs of the Application.
The First Respondent opposed the making of orders as sought in the amended application and sought costs should the application be dismissed. The First Respondent relied upon written submissions filed by him on 10 October 2016. The Court also had before it the evidence as contained in the Court Book filed on behalf of the First Respondent.
Background
The Applicant is a national of Sri Lanka, a Hindu and of Tamil ethnicity. He arrived in Australia by boat on 20 June 2012. The Applicant was interviewed (entry interview) by the Department of Immigration and Citizenship (as it then was) (‘the Department’) on 31 July 2012. The interview was conducted with the assistance of an interpreter. The Applicant applied to the Department for a Protection (Class XA) visa (‘Protection visa’) on 23 November 2012. As set out in paragraphs five to thirteen inclusive of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’), in a statement of claims attached to his application for a Protection visa the Applicant claimed:-
“(5)… that his family supported the Liberation Tigers of Tamil Eelam (the LTTE), but they were not involved in ‘fighting’ for them. His uncle, who now lives in Sydney, occasionally gave them money. He was working at Eastern University at the time and he would give the LTTE some of his salary, which was ‘compulsory’.
(6) A person by the name of X was in charge of the Karuna camp in his village. He operated with impunity and could do whatever he wanted. X and his men carry arms and have killed many people. In 2006 the group was building a camp in the village and they asked the Applicant to help them with electrical work. Although he was sick, he was beaten and forced to go. He was never paid for this work. He was forced to do this type of work on five different occasions over about two years until the construction of the camp was completed. Even after the camp was built he had to sometimes go back to repair things.
(7) The Applicant’s family used to support the Tamil National Alliance (TNA). His father supported a candidate called Joseph Pararasasingam. Mr Pararasasingam ran as a candidate in elections before the end of the war. The Applicant’s father put up posters, attended meetings and accompanied Mr Pararasasingam to people’s houses to convince them to vote for the TNA.
(8) In the 2010 parliamentary elections the Applicant was canvassing for a candidate called Pon Selvarajah. He put up posters, organised meetings, decorated the meeting venues and promoted the party by visiting people’s houses.
(9) In March 2010 he was putting up TNA posters with three others when X and his friends came and harassed him. The Applicant and his colleagues were beaten with wooden sticks and they were told they had to stop working for the TNA. He managed to escape from X. The Applicant was advised by Mr Selvaraja [sic] that there was no point in reporting the matter to the police.
(10) In April 2010 Mr Selvaraja [sic] won the elections and three days after the results were announced X visited the Applicant’s house looking for him. The Applicant was not home at the time. He told the Applicant’s mother that if he saw the Applicant supporting the TNA again he would shoot him.
(11) In May 2010 the Applicant was playing cricket when X came and slapped him on his face. X then pulled out a pistol and pointed it towards him. There were many people around and they begged him not to shoot the Applicant. After that the Applicant stayed with Mr Selvaraja [sic] or other friends. About two or three weeks later, the Applicant moved to Colombo after his uncle, who resides in Australia, arranged a job for him in Colombo.
(12) About a year after the Applicant moved to Colombo, he started receiving threatening phone calls from X on his mobile phone. He had no idea how X had got hold of his phone number. X told him that he knew where he worked and lived. He told him that he could ‘take [him] down’ in Colombo or whenever he returned to his village. At first X called him every day and then it was ‘less often’. The Applicant visited his village three times between 2010 and 2012. On each occasion he stayed only for a couple of days and did not leave the house much.
(13) The Applicant fears being killed by X if he were to return to Sri Lanka. He cannot live anywhere else because even in Colombo he was tracked by X and he could be found by Karuna again.”
The Tribunal noted the Applicant was interviewed by a delegate of the Minister on 8 April 2013 and that on 17 April 2013 the Applicant’s representatives provided further submissions and additional documents to the delegate. References to country information since the end of the civil war in 2009 and being in 2010, 2011 and 2012 and from diverse sources including the UNHCR, the UK Home Office, the US State Department, the Australian Department of Foreign Affairs and Trade, Canada and others were included in the submissions. Further claims, that young Tamil men from the north and east of the country may encounter closer scrutiny during the police registration process in Colombo, and that the Applicant was at risk of harm as a failed asylum seeker on return to Sri Lanka, were made. Amongst the additional documents provided were details of four persons who were allegedly forced to return to Sri Lanka and were persecuted in detention upon returning. The Tribunal noted the delegate of the First Respondent refused to grant the visa on 1 August 2013. The Tribunal summarised that decision.
The Tribunal, in paragraphs 21 to 29 inclusive of its Decision Record set out the further evidence before it, including that evidence as contained in pre-hearing submissions, at the hearing, where the Applicant was represented by his registered migration agent and had the assistance of an interpreter in the Tamil (Sri Lankan) and English languages, and in post-hearing submissions. The Tribunal noted the submission of the Applicant dated 30 January 2015 also addressed the issue of internal relocation and claimed that:-
“(25)… there is real [sic] chance that the Applicant will suffer serious harm and significant harm in the form of being detained, tortured and killed. He fears this harm for the reason of his Tamil ethnicity, his religion as a Hindu, his political opinion as a supporter of the TNA, his imputed and actual support for the LTTE and membership of a particular social group as a family member of wealthy Tamils in eastern Sri Lanka. It was submitted that his risk of harm and exposure is exacerbated by his profile as a Tamil failed asylum seeker. It was submitted that the Applicant fears harm from Karuna, and particularly its local commander, X. He also fears harm throughout Sri Lanka at the hands of the Sri Lanka military and its authorities...”.
The Tribunal Decision
In respect of the Applicant’s claims relating to the Karuna group, the Tribunal accepted that the Applicant was beaten and forced to work on a Karuna construction site without pay on a number of occasions; that he was a TNA supporter and assisted in an election campaign in 2010 in relation to which he was beaten by the Karuna group leader and told to stop working for the TNA; that the Karuna group leader attended the Applicant’s home looking for him; and that the Karuna group leader slapped the Applicant on the face and threatened to shoot him at a time when the Applicant was playing cricket.
The Tribunal said in paragraphs 38 and 39 of the Decision Record:-
“(38) The Applicant’s evidence suggests that he was a low level supporter of the TNA and that he had ceased his activities after the 2010 elections. He did not claim that he had any intention of pursuing political activities at any level in the future. When it was put to him at the hearing that many Tamils in his home area support the TNA and he was asked why he was singled out by X, he stated that his father was also involved with the TNA and he had put up posters near X’s office when others were reluctant to do so. While the Tribunal accepts these claims, it is difficult to accept that the Applicant would be subjected to harm by X or anyone else for the reason of his support his political opinion [sic]. Nevertheless, the Tribunal is prepared to accept that the combination of the Applicant’s past political support for the TNA, his activities during the 2010 elections and his personal disputes with X on the cricket field may continue to put (him) at risk of harm by X and his associates.
(39) On the basis of the evidence before it, the Tribunal finds that if the Applicant were to return to his village, there is a real chance that he would be subjected to serious harm at the hands of X and his associates.”
The Tribunal then gave consideration as to whether it would be reasonable for the Applicant to relocate to Colombo. The Tribunal found the Applicant to be a “low level supporter of the TNA”. The activities in which he engaged were during the 2010 parliamentary election. The Tribunal said of the Applicant “he had no other involvement with the TNA and did not claim to have pursued any TNA related activities after 2010”. The Tribunal had doubts, in those circumstances, that X would threaten him by phone in Colombo a year after his departure from his home village. Even accepting that such calls occurred, the Tribunal said relevantly in paragraph 42 of its Decision Record:-
“(42)… The Tribunal is not satisfied that the Applicant seriously felt threatened by the phone calls, or that those making the calls seriously intended to act upon the threats. The Tribunal, therefore, finds that the threats in this case do not fall within s.91R(1)(b) and do not give rise to any real chance of persecution in the reasonably foreseeable future. As already noted, the Applicant remained in Colombo until shortly before his departure from Sri Lanka in June 2012. During this time he continued to reside at the same address and work for the same employer. If X or anyone else had any serious intention to harm him in any way, they had ample opportunity to do so between May/June 2010 and June 2012. However, nothing happened to the Applicant. The Tribunal is not satisfied that there is a real chance that the Applicant will be subjected to serious harm by Karuna generally or X in particular if he were to relocate to Colombo.”
The Tribunal found no information before it to suggest Tamil supporters of TNA in Colombo had been subjected to harm. The Tribunal was not satisfied that, if the Applicant were to return to Sri Lanka and relocate to Colombo, there is a real chance that he would be subjected to serious harm by the Sri Lankan Army (SLA), the Sri Lankan authorities or anyone else for the reason of his past support of the TNA.
The Tribunal considered the claim made by the Applicant that he fears harm because of his ethnicity. The Tribunal considered and referred to various pieces of country information. Whilst the Tribunal accepted the Applicant may face greater scrutiny as a young Tamil male, the Tribunal did not accept “that being subjected to scrutiny amounts to serious harm”.
The Tribunal was otherwise not satisfied that the Applicant faced a real chance of serious harm on account of his race as a Tamil if he returned to Sri Lanka and relocated to Colombo; for reason of his Hindu religion; or for being a member of the particular social groups of ‘wealthy Tamils in eastern Sri Lanka’ or ‘wealthy Tamil landowners who are targeted for extortion’ if he returned to Sri Lanka and relocated to Colombo.
The Tribunal considered relevant country information when considering the Applicant’s status as a failed asylum seeker who departed Sri Lanka illegally. Again it considered relevant and updated country information. In particular, the Tribunal relied on the Department of Foreign Affairs and Trade (DFAT) reports of October 2014 and February 2015. The Tribunal said at paragraph 61 of the Decision Record the following:-
“(61) On the basis of the evidence before it, the Tribunal is not satisfied that the combination of the Applicant’s ethnicity, past support for the TNA and his living overseas would specifically impute him with having links to the LTTE or expose him to a greater level of interest by the Sri Lankan authorities. The Tribunal is not satisfied that there is a real chance that the Applicant will be persecuted for reasons of any pro-LTTE or anti-government political opinion that may be imputed to him because he has lived in Australia or because he has sought asylum in Australia. The Tribunal is not satisfied that there is a real chance that the Applicant will be persecuted for reason of his membership of the particular social group of ‘failed Tamil asylum seekers’, or because he is a Tamil who left Sri Lanka illegally and who has applied for asylum in Australia. The Tribunal is not satisfied that there is a real chance the Applicant will face serious harm as a result of any follow-up by any other authorities or agencies.”
As to the Applicant’s illegal departure the Tribunal said:-
“(64) Information before the Tribunal indicated that returnees charged with offences related to illegal departure may be held on remand for a period before being released on bail. DFAT has advised that returnees are arrested and held at the airport for up to 24 hours. They are then produced before a magistrate to apply for bail. All persons are granted bail on personal recognisance with the requirement for a family member to stand as guarantor. There is no requirement to pay for bail. If the person needs to be held for more than 24 hours, for instance when a person arrives on the weekend or a public holiday, they are placed in the remand section of the Negombo Prison until the court is in session.
(65)The evidence before the Tribunal does not suggest, and the Tribunal does not accept, that there is a real chance that the Applicant will be detained for a prolonged period of time as a penalty for illegal departure. The Tribunal finds that any period of detention will be short and confined to, at most, a few days. The Tribunal accepts that high-profile former LTTE members who are suspected of committing serious crimes, including terrorism offences are at risk of torture. According to DFAT, this is due in part to the use of torture to extract information or confessions from suspects, and the extended period these people may spend in pre-trial detention. The Tribunal has already found that the Applicant would not attract adverse attention from the authorities due to his past TNA links and activities. The Tribunal is not satisfied that he will be imputed with a political opinion because of his illegal departure or treated differently because he is a member of a particular social group of failed asylum seekers or any other particular social group apparent on the face of the evidence.
(66) There is no persuasive evidence before the Tribunal to suggest that the Applicant would be detained for longer periods of time for any other reason. The evidence before the Tribunal does not establish, and the Tribunal is not satisfied, that the Applicant will be singled out for torture or mistreatment or that he will be treated any differently if he is placed in remand for a short period because he is a Tamil, or for any other Convention reason. There is no information before the Tribunal to indicate that returnees held in remand awaiting bail hearings have been subjected to torture or ill-treatment.
(67) The Tribunal accepts that the Applicant may be questioned at the airport, charged and placed in remand for a short-period. The Tribunal also accepts that prison conditions in Sri Lanka may be poor. However, as it was put to the Applicant at hearing, the sources consulted suggest that the treatment the Applicant might face upon his return applies to all persons, regardless of race or religion. Tamils are not singled out. The Tribunal is not satisfied, therefore, that being questioned, arrested, charged and detained for a short period in poor conditions, which may include overcrowding and poor sanitation, amount to systematic and discriminatory conduct as required by s.91(1)(c). The Tribunal finds that processing of returnees and any penalties that may be imposed on the Applicant are the result of the non-discriminatory enforcement of a law of general application.”
The Tribunal canvassed the ‘persecution’ aspects of the Applicant’s relocation to Colombo and concluded that there was no evidence before it to support a conclusion that the Applicant, as a Tamil supporter of TNA in Colombo would be subject to harm. Additionally, the Tribunal found the Applicant made no claim as to having any involvement with the TNA in Colombo in the two years he had resided there. The Tribunal concluded that it would be reasonable and practicable for the Applicant to safely relocate to Colombo. The Tribunal then went on to consider the reasonableness of relocation. It noted the Applicant lived in Colombo for two years and did not consider the absence of family connections there would make it unreasonable. The Tribunal noted the Applicant had some familiarity with the city. The Tribunal concluded it would be reasonable and practicable for the Applicant to safely relocate to Colombo. The Tribunal was not satisfied that there was a real chance that the Applicant would face serious harm for a Convention reason if he were to internally relocate. Finally, the Tribunal considered the Applicant’s relocation in terms of the complementary protection legislation and re-visited its earlier consideration of, and acceptance of the fact that Tamils continue to face a level of ‘societal discrimination’ in Sri Lanka to which the Applicant may be subjected to in Colombo. The Tribunal concluded the Applicant did not have a profile that would put him at risk of significant harm for the reason of his actual or imputed political opinion or any other reasons if he was subjected to scrutiny on his return to Sri Lanka and relocation to Colombo.
Consideration
Ground one alleges that the Tribunal failed to consider “the Applicant’s political views and their ongoing expression” or alternatively, “why the Applicant was being ‘discrete’ in relation to his political view”’. The ground alleges the Tribunal failed to properly apply S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 and Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132.
This ground must fail. The Applicant did not advance a case that he would continue to express any political views upon return to Sri Lanka and nor did he have any involvement with the TNA in the two years after he moved to Colombo. The Applicant not advancing such a case, and it not being obvious on the materials before it, specifically the claim that the Applicant might become engaged in the next election campaign with the TNA, the Tribunal was not required to consider such a scenario. Indeed the Applicant put the contrary case being that he had no intention of becoming further engaged politically. The Tribunal had found the Applicant to be a low level supporter of the TNA in 2010 and when residing in his local region. That was the only claim made. It was not for the Tribunal to construct a differing case for the Applicant.
Ground three alleges that the Tribunal failed to consider discrimination against Tamils when considering whether it was reasonable for the Applicant to relocate.
The relevant test for internal relocation is whether it would be reasonable to expect the Applicant to relocate.[1] The Tribunal gave extensive consideration to this issue in paragraphs 40 to 74 of the Decision Record, and as submitted by Counsel for the First Respondent made findings which were reasonably open to it on the evidence and materials before it.
[1] SZTAV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Ground four has several particulars as set out below:-
“(4) The Tribunal fell into jurisdictional error in that it failed to consider relevant considerations by failing to consider claims, or integers of claims, or information required by the Act and the law to be considered.
Particulars
(a) The Applicant claimed and the Tribunal found that the Applicant had been a supporter of the Tamil National Alliance (‘TNA’) and had been beaten, slapped and threatened, but the Tribunal failed to consider whether the Applicant had well founded [sic] fear of persecution for reason of political opinion, or a real risk of significant harm, by reason of any future activity by him in support of the [sic] or by reason of a future perception of him as a supporter of the TNA, including during or because of any future election campaign.
(b) The Tribunal found that the Applicant may experience scrutiny as a Tamil if he were to relocate from his home area to Colombo but failed to consider whether this scrutiny may cause the Applicant to have well founded fear of persecution, or a real risk of significant harm, by reason of:-
(i) any future activity by him in support of the TNA, including during or because of any future election campaign; or
(ii) a future perception of him as a supporter of the TNA; or
(ii) as a victim of the Karuna Group or other paramilitary group; or
(iv )societal discrimination against Tamils.
(c) The Tribunal found that there were reports that “Sri Lankan returnees are treated according to standard procedures regardless of ethnicity” but failed to consider whether the same standard procedures including intervention, investigation and detention were applied or practiced in a discriminatory way towards Tamils, although there was evidence that the majority of returnees were Tamils, and that some Tamils had suffered harm on return.
(d) The Tribunal noted but failed to make any findings about the Applicant’s claims that four persons from his village were persecuted in detention on return to Sri Lanka and about the significance of this for the risk to the Applicant.
(e) The Tribunal considered the issue of detention of returnees to Sri Lanka, but failed to take into account the Applicant’s claims that four persons from his village were persecuted in detention on return to Sri Lanka or the other evidence of differential treatment of Tamils on return.
(f) The Tribunal failed to consider whether there was a person in the Applicant’s family willing and able to be guarantor for his bail, and the consequence of this for the length of time he may spend in detention and whether his treatment in this time may amount to persecution or significant harm.
(g) The Tribunal failed to consider the defects in Australia’s ability or practice in monitoring the safety of people returned to Sri Lanka.”
This ground overlaps to some extent with ground one and ground five. The Tribunal in fact dealt with each of the above matters in some considerable detail. It referred to ‘country information’ on which it relied. The Tribunal preferred the information in the DFAT reports of October 2014 and February 2015 to that information contained in the Applicant’s submissions. Each of the findings made by the Tribunal were open on the evidence before it. The preference of the Tribunal for one body of ‘country information’ over another is a matter for it. As was said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at paragraph 13:-
“… Both the choice and the assessment of the weight of such materials were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
The Tribunal put relevant country information as to the procedures for illegal returnees to the Applicant for comment. No jurisdictional error is evident in the Decision Record of the Tribunal with respect to this ground.
Ground five alleges that the Tribunal acted illogically or unreasonably.
The Court rejects this ground. The Tribunal dealt with the Applicant’s claims on the evidence and materials before it including updated country information as selected by it. There was nothing unreasonable or illogical in its approach or findings. Its findings were based on the material before it and open to it. It afforded procedural fairness to the Applicant as to the content of the ‘country information’ on which it relied by putting matters for comment to the Applicant.
The application is dismissed. Costs will follow the event.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Deputy Associate:
Date: 25 January 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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