ASN15 v Minister for Immigration

[2016] FCCA 9

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASN15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 9

Catchwords:
MIGRATION – Protection (Class XA) visa – whether refugee review tribunal’s decision infected by jurisdictional error – no jurisdictional error.

Legislation:

Migration Act 1958, ss.5J, 36(2)(a), 36(2)(aa)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014, Schedule 5 items 7 and 28

S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

Applicant: ASN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 409 of 2015

Judgment of: Judge Jarrett

Hearing date: 21 October 2015

Date of Last Submission: 21 October 2015

Delivered at: Brisbane

Delivered on: 11 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Thackeray

Solicitors for the Applicant: Thackeray & Co Lawyers

Solicitor for the First Respondent: Ms Tattersall

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance.

ORDERS

1. The name of the second respondent be substituted with the name “Administrative Appeals tribunal (formerly known as the Refugee Review tribunal)”.

2. The application filed on 11 May, 2015 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application, including reserved costs, if any fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 409 of 2015

ASN15

Applicant

And

MINISTER FOR IMMGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476(1) of the Migration Act1958 (Cth) for review of a decision of a refugee review tribunal given on 8 April, 2015 that affirmed a decision of a delegate of the first respondent to refuse the applicant a Protection (Class XA) visa.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. Both parties have filed and served written submissions in support of their cases.

Background

1. The applicant is a citizen of Libya.  He is of the Sunni Muslim faith.  He arrived in Australia in August, 2010 as the holder of a student visa.  He lodged an application for a Protection (Class XA) visa on 15 November, 2013.

2. The applicant claimed to fear harm as a result of his actual and imputed political opinion.  He also made claims for complementary protection on the basis that he feared suffering significant harm, namely, be subjected to torture, or cruel and inhuman treatment or punishment, degrading treatment or punishment or arbitrary deprivation of his life.

3. The basis of his application was his claim that he is a supporter of the former Gadhafi regime and opposed to “militias who continue to dominate the Libyan political landscape” as well as Islamists and had regularly expressed such opposition in the social media.  He claimed that if returned to Libya he would be “forced to adopt self-imposed constraints on expression of my political views ta counter the threats from militias and Islamists”.  He claimed that the killing of pro-Gadhafi supporters was ongoing and “remorseless”.

4. He claimed that he was opposed to the various militias that were operating in Libya and that he was a supporter of the Gadhafi regime.  He claimed that if he was forced to return to Libya he would have to suppress the expression of his political views so as to “counter the threats from militias and Islamists”.

5. He also claimed that, as an inhabitant of Alasaba, he would be identified as being pro-Gadhafi and have difficulty in passing through check-points.  He claimed that “The small town of Alasaba is recognized throughout Libya as one of the last bastion of Gadhafi stronghold.  Accordingly, all inhabitants of Alasaba are imputed to being pro-Gadhafi and face ongoing threats to their safety.”  He claimed that his hometown was blockaded by militias from a close-by city, Gharian and that they had been “inflicting on Alasaba ongoing violent retributions”.  Residents of Alasaba were unable to travel outside of that town.

6. The applicant claimed that he would not be protected by any law enforcement agencies in Libya and that he would most likely suffer significant harm in the nature of:

   . denied universal right to law and order

   . restrictions of my liberties, including freedom of movement

   . arbitrary detention

   . censure of my political and religious views

   . ongoing monitoring

   .gross physical mistreatment at the hands of militias

   . deprivation of legal protection and legal processes which my ordinarily apply

   . significant impediment on my right to earn a living, due to ongoing monitoring and restrictions placed on my liberty/freedom of movement

   . deprived of legal protection when threatened by individuals

   .denied right to pursuit of further education

   . denied access to adequate health care

   .subjected to militia checkpoints and mistreated at checkpoints, including physical

   .mistreatment and harassment

   .subjected to risk of extortion attempts

   .personal safety exposed to ongoing inter militia conflict

   …

   . execution

   .detention without trial

   .torture

   .kidnapping

   .destruction of property

   .impoverishment

7. The applicant further elaborated on his claims in interview with the first respondent’s delegate on 28 January, 2014 claiming that he had learned in 2012 that his name was on a “black-list”.

8. On 14 March, 2014 the first respondent’s delegate refused the visa for which the applicant had applied.  The applicant applied for review of the delegate’s decision by a refugee review tribunal.

9. The tribunal convened a hearing so as to permit the applicant to give evidence and present arguments in support of his application.  That hearing occurred on 3 December, 2014.  The applicant had the assistance of an Arabic interpreter.

10. At the tribunal hearing the applicant further elaborated on his claims, adding to those that he had made earlier.  The tribunal recorded:

    19.    At the hearing, the applicant repeated his above claims, but conceded he did not know that his name was on a blacklist, although his brothers’ and father’s name were on a black list. He added new claims that his father had been shot, imprisoned, and then released for medical treatment. His brothers had returned to living in his home town. One returned from Tripoli in October 2014 after being involved in a shooting. Another left his work in the neighbouring city in 2011.  The applicant added too that his former university dean may have named him on a black list as the recipient of a scholarship from the Gadhafi regime.

11. On 8 April, 2015 the tribunal affirmed the delegate’s decision to refuse the applicant the visa for which he had applied.

12. The tribunal assessed the credit of the applicant’s claims carefully.  The tribunal had concerns that were raised with the applicant during the hearing about the credit of his claims, given the way in which they had developed over time, particularly those relating to his father and brothers.

13. As to the claims made by the applicant relating to his hometown of Alasaba, the tribunal said:

    25.    Unable to make a firm finding against the applicant, for the purpose of this decision and giving the applicant the benefit of the doubt, the Tribunal accepts the reports the Tribunal found are related to the applicant’s home town, albeit the town is similarly, but differently named. The Tribunal is willing to accept the applicant and his family members have a pro-Gadhafi political opinion and that the applicant and his family personally hold a pro-Gadhafi political opinion. As discussed in more detail below, the applicant has claimed his father has travelled to Tripoli and to Tunisia for medical treatment, which is inconsistent with claims that his family members are unable to leave their hometown. On the available independent country information, the Tribunal does not accept however that the applicant’s home town is blockaded by any militia and does not accept his family are unable to travel outside his home town. 

14. As to the claims that the applicant had made about his father, after referring to the evidence given by the applicant and the documents provided by him to support his claims, the tribunal gave the following analysis of the evidence:

    27.    The documents are dated across two years and from the translated documents appear to be related to differing medical conditions (a head injury and an abdominal complaint). There is no reference in the translated documents to the applicant’s father suffering a gunshot wound. The documents issued in Libya appear to be issued by government departments; the Libyan national army and the ministry of health. Given the Gadhafi regime had already fallen prior to the date of any of the translated documents, the Tribunal has difficulty accepting the plausibility that the new Libyan authorities would arrange for the medical care of the applicant’s father, who the applicant claims is known as pro-Gadhafi, firstly transferring his father from the neighbouring city to Tripoli and then to Tunisia. What makes the applicant’s claims even more implausible is that his father would receive that level of care for injuries claimed in part to have been suffered when his father was imprisoned by anti-Gadhafi militia. While the translated medical certificates clearly indicate the applicant’s father has some medical conditions, the Tribunal rejects those conditions were incurred because the applicant’s father was shot, jailed and tortured by any militia. The documents rather indicate that the applicant’s father has received considerable medical assistance by the Libyan authorities.  The Tribunal has had regard to the untranslated documents and although the applicant was allowed additional time after the hearing to arrange English translations, he did not provide translations to the Tribunal of those documents. The Tribunal is therefore unable to ascertain the content of the documents and is consequentially unable to place any weight on the untranslated documents.

15. The tribunal did not accept that the applicant’s father was a member of a pro-Gadhafi militia.  The tribunal rejected the applicant’s claims that his father was a member of a pro-Gadhafi militia, shot, imprisoned or tortured due to any political opinion or for any other Convention reason.

16. The tribunal did not think that the applicant’s claims relating to past harm to his family members were credible.  The claims were made very recently in the applicant’s visa application process and there was no persuasive explanation by the applicant as to why the claims were made so late.  Moreover, his explanations were inconsistent. The tribunal rejected the claim that any of the applicant’s brothers were targeted for harm by militias due to the brothers’ political opinion or any other Convention reason.

17. The tribunal considered that the applicant had provided inconsistent evidence regarding him being named on a “black list”.  The tribunal rejected that the applicant or any member of his family had been named on a blacklist. The tribunal considered that the applicant fabricated these claims as a means to create a basis upon which to strengthen his claims for protection.

18. The tribunal had reviewed reports about the general security situation in Libya both at the time of the change of regime in 2011 and more recently. The tribunal discussed with the applicant it accepted the situation in Libya was uncertain and unstable. The tribunal accepted that there were many militias, some based on Tribal groups, other geographic and others religious.  It also accepted that the Libyan government was not able to effectively control the militias.  The tribunal accepted that the applicant held genuine, subjective fears about returning to Libya.

19. The tribunal accepted that the applicant may hold anti-Islamist or anti-Militia or pro-Gadhafi views however, the tribunal considered that there was only a speculative chance and therefore not a real chance that the applicant would suffer serious harm, now or in the reasonably foreseeable future if the applicant returns to Libya, by reason of an implied political opinion because:

    a)he is pro-Gadhafi because he comes from his hometown, now or in the reasonably foreseeable future if he returns to Libya;

    b)given its rejection of his claim about being placed upon a “blacklist” by a Dean of a university, his name had been place on such a “blacklist”, or because the applicant received a scholarship issued by the Gadhafi authorities, or because the applicant is educated, or because the applicant resided in Australia for many years.

20. The tribunal considered that there was only a remote or speculative chance that any militia would, in the future, have any knowledge of the applicant’s political opinions, because the applicant gave no evidence that he would engage in any future activity which will make his views known publically or will bring his views to the attention of persons he fears may harm him for having such views.

21. As to the ongoing violence in Libya, the tribunal said:

    40.    The Tribunal accepted there are various competing militia in Libya and that there is wide spread violence. The Tribunal therefore must have regard to whether the applicant faces a real chance of serious harm arising from the security situation in Libya. Where harm occurs in a context of widespread conflict, it would be wrong to require the applicant to establish a risk of persecution over and above the risks faced by others caught up in the conflict - it is not the degree or differentiation of risk that determines whether a person caught in generalised violence is a refugee under the Convention definition.    However, the risk must be related to a Convention reason. The Tribunal considers the risk to the applicant that he would be harmed in an act of violence by any militia is no more than harm from generalised violence and therefore is not for a Convention related reason.

22. The tribunal concluded that the applicant did not satisfy the requirements of s.36(2)(a) of the Act.  Having regard to its anterior factual findings, the tribunal also found that the applicant did not satisfy the complementary protection criterion either.

Grounds of review

1. The applicant presses the ground of review in his application which is in the following terms:

   1. The decision of the Second Respondent was affected by jurisdictional error because:

   a. The Second Respondent asked itself the wrong question by requiring the Applicant to modify his conduct and by failing to consider whether being forced to modify his conduct is, of itself, persecution of the Applicant by the government giving rise to a well-founded fear of persecution now or in the reasonably foreseeable future.

   Particulars

   i. The Second Respondent considered that the Applicant may not be able to pursue his desired employment path as an academic.

   ii. The Second Respondent made a finding that this would only constitute persecution or significant harm if the [applicant] was denied an opportunity to subsist.

   iii. The Second Respondent failed to consider whether being forced not to work within his chosen profession is, of itself, a form of persecution.

   iv. The Second Respondent accepted that the Applicant holds anti-Islamist and anti-Tribalism views.

   v. The Second Respondent considered that there was only a speculative chance that the Dean of Jabal Gharbi University brought the Applicant’s political opinions to the attention of militias to amount to being named on the black list. In so doing, the Second Respondent requires that the Applicant not express his opinion within the surrounding social and professional networks.

   vi. The Second Respondent failed to consider whether being forced not to express his opinion outside his own social and professional network is, of itself, a form of persecution.

   vii. The Second Respondent failed to consider whether being forced to hide documents and forms of his identity is of itself a form of persecution.

   viii. The Second Respondent failed to consider a claim, being the worsening security situation in Libya.

2. The applicant claims that the tribunal fell into error with respect to its assessment of ‘real risk of significant harm’ of the purposes of the applicant’s claim to complementary protection.

3. As to that, the tribunal said (errors in the original, my emphasis):

   Real risk of significant harm

   43.    The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act. 

   44.    The Tribunal accepted above that the applicant’s father had some medical conditions, but rejected that they were a result of injuries incurred as claimed by the applicant. The Tribunal does not consider the applicant’s father having those medical conditions gives rise to any substantial grounds for believing the applicant will face any significant harm if he is removed to Libya.

   45.    The Tribunal accepts above there various competing militia in Libya and widespread violence. The Tribunal considers there to be more than a remote or speculative chance and therefore there is a real risk the applicant would suffer being arbitrarily deprived of his life, or suffer cruel or inhuman treatment or punishment arising from injuries suffered in a militia attack. However, again, the Tribunal considers the risk of harm from militia violence is a risk faced by the Libyan population generally and not by the applicant personally. Such risks are within the scope of s.36(2B)(c) and therefore are not a real risk of significant harm.

   46.    In relation to the balance of the applicant’s claims, the Tribunal found above the applicant does not have a well-founded fear of persecution on any ground as he does not face a real chance of serious harm. Given the real chance test for well-founded fear of persecution imposes the same standard as the real risk test of significant harm, for the same reasons set out above, the Tribunal is not satisfied the applicant has a real risk of significant harm.

   47.    The Tribunal therefore considers there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Libya there is a real risk the he will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant does not meet the requirements of s.36(2)(aa).

4. The applicant submits that there should have been analysis of s.5J of the Act.  That section, which the applicant submits relates to the modification of behaviour to avoid persecution, has the effect “that there can be found no well-founded fear of persecution where the applicant can take reasonable steps to modify his conduct so as to avoid a real chance of persecution upon return to Libya”.

5. However, there are two difficulties with the applicant’s argument in this respect.  First, s.5J of the Act was not in force at the time that the tribunal gave its decision and had no application to this determination by the tribunal.  Second, the factual basis upon which the application advances this ground does not exist.

6. As to the first matter, s.5J of the Act was introduced into the Act by item 7 of Part 2 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014. By item 28 of Part 4 of Schedule 5 of the Amendment Act, item 7 applies in relation to an application for a protection visa that is made on or after the day item 28 commences. That day was 16 December, 2014. The applicant made his application for a protection visa well before that date, on 15 November, 2013. Section 5J of the Act had no application to the applicant’s visa application and the tribunal was not obliged to consider it.

1. In any event, the applicant now argues that upon return to Libya he would be unable to continue his academic aspirations. He would effectively have to give up study and turn his mind to an alternative career path, a set of circumstances that he says amounts to being entirely unreasonable. I say, now, because no such argument was ever put to the tribunal, by the applicant.  It did not form part of his claims that he could not continue on his career path and would have to modify his behaviour so as to live safely in Libya.  The tribunal did not make any finding that the applicant may not be able to pursue his desired employment as an academic.  The applicant did not suggest that either.  Nor did the tribunal find that an inability by the applicant to do so would only amount to serious or significant harm if the applicant was denied an opportunity to subsist.  The tribunal is only obliged to consider those claims made by the applicant or those which a raised squarely by the material before the tribunal.  Such a claim was not raised by the applicant and, in my view, it cannot be said to arise squarely from the material before the tribunal.  I reach that conclusion because:

   a)the tribunal rejected the applicant’s claims of his name being on a “black list” apparently maintained by his former Dean; and

   b)the tribunal could find no evidence of any other recipients of Gadhafi regime scholarships having been “black listed” of targeted for violence.

2. I accept the first respondent’s submissions that the applicant’s ground of review, and the arguments put by the applicant amount to nothing more than an impermissible attempt at merits review of the tribunal’s decision.

3. The tribunal accepted that the applicant might hold anti-Islamist or anti-Militia or pro-Gadhafi views.  But it did not find, and the applicant did not suggest that:

   a)he had a strongly held political opinion that he had refrained from expressing out of fear of harm; or

   b)he had undertaken any past political activity of any kind.

4. The applicant made no claim that he would become politically active if he returned to Libya.

5. In those circumstances, I accept that it was unnecessary for the tribunal to consider whether the applicant would be forced to modify his behaviour to avoid persecution.  I was certainly not suggested by the applicant that he would have to modify his career path if he was to return to Libya.

6. As to the finding by the tribunal that the applicant fabricated his claims about his name, and those of some of his family, being on a blacklist, the applicant argues that:

   11.    The features upon which the applicant says the RRT’s analysis is flawed are these:

   a.  Obtaining evidence of a blacklist would, of itself, be very difficult to do, given the inherently secret nature of such a document.

   b.  Therefore, to make a finding solely on the basis that there was no evidence of a blacklist is perhaps indicative of the RRT ignoring the evidence which was not in dispute and failing to draw a reasonable inference in relation to it.

   c,  The applicant was indeed a university student issued a scholarship by the Gaddafi regime. On his evidence, which was not called into question, he was the only one in the class to be awarded the scholarship.

7. The tribunal’s finding about the “blacklist” was not based solely upon there being no evidence of the list.  The tribunal explained why it did not accept the applicant’s evidence about that.  It considered his evidence about the list was fabricated.

8. As to the risk to the applicant by reason of him receiving a scholarship, the applicant argues that the tribunal rejected his claim:

   …notwithstanding his clearly made point that he was the only student in his class with the scholarship, and thus the only student known to him to be facing such a situation. In such circumstances, it certainly could be reasonably inferred that he could be singled out upon return to Libya. This is yet again more likely, given the fact that he has been a resident in Australia for five years.

9. However, it was not the case, as the applicant suggests, that the evidence was that he was the only scholarship winner.  Whilst he was the only recipient from his cohort, there were other recipients, but the tribunal could find no evidence of reports of harm to such people.

10. Further, the applicant argues that the tribunal was wrong to conclude that he did not hold strongly, the political views he claimed to hold.  He argues: 

    13.    A significant part of the RRT’s analysis was that it felt that the applicant’s political opinion was not strongly held. To substantiate this observation, the RRT had regard to Facebook postings and generally open and public positioning with respect to his political opinion.  Again, in this regard, the applicant says the RRT erred in its analysis, as it cannot be broadly held that just because someone does not share Facebook postings or attend rallies they are necessarily any less strongly committed to a political position than someone who does.

    14.    Certainly, in the context of the applicant’s desire to peruse an academic career, it would perhaps be understandable that he might have felt compelled to modify his strongly held political views and not make them public for fear that this might stifle his academic progress, if not put an end to it completely.

11. However, the tribunal was entitled to draw that conclusion that it did on the material before it.  The tribunal was entitled to consider that the applicant’s lack of public political activity (including activity on social media) whilst he was not in Libya reflected upon the strength of those political opinions.  The applicant’s submission that he “might have felt compelled to modify his strongly held political views and not make them public for fear that this might stifle his academic progress” is not borne out by his evidence.  He did not give evidence to that effect.

12. Further, in submission, the applicant suggests that the tribunal ought to have considered his need to modify his behaviour should he return to Libya and that the tribunal ought to have considered s.5J of the Act and the approach of the High Court in in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. But in my view, the tribunal was not so obliged because on the tribunal’s findings, there was nothing that needed modification if he was to avoid harm for a Convention reason should he return to Libya.

13. I accept the first respondent’s submission that insofar as the applicant contends that the tribunal erred in its analysis of the claim that the Dean placed his name on a “blacklist” or in the assessment of the strength of the applicant’s political opinion:

    a)a challenge to those findings is not the subject of a ground of review in the application for review; and

    b)in any event, such findings are findings of fact which were open on the evidence before the tribunal and cannot be reviewed by this Court.

Conclusion

1. In my view, the applicant does not demonstrate that the tribunal’s decision is affected by jurisdictional error.  The decision is a privative clause decision within the meaning of s.474(1) of the Act.

2. The application must be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 January, 2016.

Associate: 

Date: 11 January 2016