Awz15 v Minister for Immigration

[2015] FCCA 3364

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWZ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3364

Catchwords:
MIGRATION – Visa – Protection visa – Persecution – Review of Refugee Review Tribunal (“Tribunal”) decision – refusal.

ADMINISTRATIVE LAW – Allegation that Tribunal “failed to properly consider” all of the claims made by applicant.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R, 91S, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v The Commonwealth (1999) 197 CLR 510
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 80
Applicant A and Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Applicant: AWZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 477 of 2015

Judgment of: Judge Heffernan

Hearing date: 2 December 2015

Date of Last Submission: 2 December 2015

Delivered at: Adelaide

Delivered on: 21 December 2015

REPRESENTATION

The Applicant: In person with Interpreter

Solicitors for the Respondents: Ms Tattersall for Sparke Helmore Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 477 of 2015

AWZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (‘the Act’) for the issue of constitutional writs in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’).  On 6 May 2015 the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection (‘the first respondent’) not to grant the applicant a protection visa, (Class XA).  The applicant argues a single ground namely, “that the Tribunal failed to properly consider all of my claims”.

Preliminary matter

1. At a directions hearing dated 13 July 2015, Judge Vasta ordered the parties to file and serve any evidence they wished the Court to consider that was additional to the materials contained in the Court Book.  This included the transcript of the Tribunal proceedings should either party want it before the Court.  Neither party filed the transcript.  The applicant filed an additional affidavit dated 13 August 2015.  Annexed to that affidavit was a document entitled, ‘Testimony of my life story’ (the annexure).  The first respondent objected to the Court receiving that document.  I declined to receive that affidavit for the purposes of these proceedings.  Firstly, the document was not before the Tribunal.  Secondly, the annexure contained additional matters of fact and a restatement of some factual matters the applicant had already advanced before the Tribunal.  If I were to rely on that annexure, I consider that I would in effect be conducting an impermissible merits review.  It is not permissible for me to substitute my own findings of fact for that of the Tribunal.[1]

   [1]     Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

2. As I explained to the applicant, the nature of these proceedings is limited to determining whether the decision of the Tribunal was made lawfully, that is, that it was not affected by jurisdictional error.[2]  The term jurisdictional error has been described by the High Court as follows:[3]

   “It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law, and the consequences that follow from a decision-maker making such an error.  As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal):

   ‘falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’

   ‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” (footnotes omitted)

   [2]     Abebe v The Commonwealth (1999) 197 CLR 510.

   [3]     Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].

3. To receive additional or restated material would be to extend these proceedings beyond the proper scope of judicial review.

Background

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 16 July 2012 as an unauthorised maritime arrival.  With the assistance of a Migration Agent, he lodged an application for a protection visa on 22 November 2012.  In the statement of claims accompanying that application, the applicant stated that on 22 June 2012 he had been the victim of an attempted extortion by two men.  He claimed that these men had targeted him because of his Tamil ethnicity.  The men threatened to ‘detain’ him for a lengthy period of time unless and until he paid them an unspecified amount of money.  The applicant claimed that he managed to escape from these two men and that he went into hiding, first at the house of his older sister, and then at the house of another relative.  On the advice of his older sister, to the effect that he would be in danger if he did not flee, he made arrangements to travel by boat from Sri Lanka to Australia.  He stated that he feared that if he returned to Sri Lanka he would be a victim of further extortion attempts.  As he had no capacity to pay off the extortionists there was a real chance that he would be severely beaten or killed.  He claimed that the extortionists were in league with both the police and the army and that as he was Tamil he would not be able to expect state protection if he returned to Sri Lanka.  It was not, he claimed, a reasonable option for him to return to live in another part of Sri Lanka because the problem of extortion in similar circumstances to his own was one which faced Tamils “all over the country”.

2. In a letter from the Migration Agent that accompanied the application, the applicant claimed that the men who had attempted to extort money from him were members of a pro government militia who no longer received financial support from the government and hence resorted to extortion particularly from Tamils.

3. On 30 December 2013, a delegate of the first respondent made a decision refusing to grant the application for a protection visa.

4. On 6 January 2014, the applicant made an application to the Tribunal seeking a review of that decision.

5. The applicant retained a Migration Agent to assist with making the Application for Review.  Accompanying that application were copies of the letters from the Department of Immigration and Border Protection, dated 30 December 2013, advising of the refusal of the review, and the decision record of the delegate of the Minister.  No additional written submission was made to the Tribunal by the Migration Agent.  The Tribunal hearing proceeded on 28 April 2015.  The applicant was in attendance and his representative appeared by telephone.  A copy of the applicant’s bridging visa was received by the Tribunal at the hearing.

6. The claims advanced by the applicant have developed in detail over time.  It is convenient to summarise the claims made to the delegate before summarising the Tribunal hearing.  I note that all of the matters averted to by the applicant before the delegate appear to have been considered by the Tribunal.

Delegate’s interview and decision

1. It should be noted that when interviewed by a delegate of the first respondent, the applicant added claims not mentioned in his original application.  The new claims were as follows:

   1.     He told the delegate that in March 2008 he was compelled to undertake propaganda work for Piragasam Sahayamani (‘Mr S’), a candidate running for the Tamil Makkal Viduthali Pulikal (‘TMVP’), a political party.  During the election campaign he had been threatened by persons who did not support the TMVP and who told him to stop working for that party.  Mr S was kidnapped in 2010 and his whereabouts is apparently unknown.

   2.     The applicant explained to the delegate that it was in this context that the attempted extortion and abduction on 22 June had occurred.  The applicant claimed that the two men had questioned him about the whereabouts of Mr S before demanding money for his release.  In essence, he said that he believed his involvement with Mr S and the extortion were directly linked.

   3.     In June 2013, two people had attended his home in Sri Lanka and asked about his whereabouts.

2. On 30 December 2013 the delegate made a decision refusing to grant the application for a protection visa.

Tribunal hearing

1. The applicant retained a Migration Agent to assist with making the application for review.  Accompanying that application were copies of the letters from the Department of Immigration and Border Protection, dated 30 December 2013, advising of the refusal of the review, and a copy of the decision record of the Minister’s delegate.  No additional written submission was made to the Tribunal, either providing additional information, or identifying precisely why the applicant disagreed with the decision of the delegate.  The Tribunal hearing proceeded on 28 April 2015.  The applicant was in attendance and his Migration Agent appeared by telephone. 

2. The Applicant gave evidence before the Tribunal and repeated the claims he had made to the delegate adding some further detail:

   1.     The applicant told the Tribunal that he was a distant relative of Mr S.

   2.     Mr S had been a high level member of the Liberation Tigers of Tamil Eelam (‘LTTE’).  He believed the army or the police had been responsible for the disappearance of Mr S. 

Submissions

Applicant’s submissions

1. The applicant represented himself at the hearing before me.

2. His submissions were in effect that he had not received a fair hearing before the Tribunal because it had not properly taken into account his claims for a protection visa.  He also reaffirmed that on the basis of the evidence, he had a good claim to be granted a protection visa, implicitly on either convention grounds, or as a result of complementary protection obligations.  He also submitted that the Tribunal was “suspicious” towards him, and that if it was suspicious then the whole proceedings became suspicious.  I understood this to be a complaint that the Tribunal had made findings of credit against him rather than a complaint of actual bias. However, I have scrutinized the reasoning of the Tribunal and am satisfied that there is no evidence that it was animated by any bias towards the applicant. 

3. Whilst the Tribunal did not accept any of the claims made by the applicant, it did not make any significant findings of credit against him. In particular, the Tribunal drew no inference adverse to the credit of the applicant when considering the fact that the claims made by him “have changed over time” to include the claim that Mr S was related to him and that Mr S was a member of the LTTE.  The Tribunal clearly did not accept the claim by the applicant that the attempted extortion and abduction was a case of him being targeted for a political reason, but it did accept that he had a genuine subjective belief that it had been politically motivated.

4. I do not accept the submission of the applicant that the Tribunal in some way approached a consideration of his claims with inherent suspicion.  However, even if the Tribunal had made significant findings of credit against him that would not of itself establish jurisdictional error.[4]

   [4]     Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67].

5. Given the general nature of the single ground advanced by the applicant, I have also considered whether it might implicitly encompass a complaint by him that the Tribunal failed to accord sufficient weight to his claims.  Of course, if this is a component of the complaint made by the applicant, it could not, even if accepted by me, amount to a jurisdictional error.  Weight is a question for the Tribunal.[5]

Respondents’ submissions

[5]     Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 41.

1. The first respondent submits that the Tribunal took into account the evidence provided by the applicant to the delegate; his further claims made to the Tribunal with respect to Mr S; that it considered all of the claims with respect to the attempted extortion and abduction; the religious and Tamil ethnicity claims; the attendance of authorities at his home in June 2013; and the failed asylum seeker and illegal departure claims.  The first respondent says that all of the findings made by the Tribunal were open to it.  Accordingly, the first respondent submits that there has been no jurisdictional error demonstrated and as a result, the application should be dismissed.

Consideration of Tribunal decision

1. The Tribunal identified a number of claims for protection on the basis of the information provided by the applicant.  In summary, the applicant claimed that if he were to return to Sri Lanka, the Sri Lankan Army or paramilitary groups would harm him because of his association and relationship to Mr S.  He believed he was also at risk of harm from the Sri Lankan authorities, particularly as a Tamil having applied for a protection visa in Australia, and having left Sri Lanka illegally. 

2. At the hearing, the Migration Agent indicated to the Tribunal that an earlier claim that the applicant feared harm because he was a Christian need not be considered by the Tribunal.  I note that the Tribunal nonetheless considered that claim on its merits and rejected it as a real chance now or in the reasonably foreseeable future.

3. In considering whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future if he returned to Sri Lanka[6] or, failing that, whether there were substantial grounds for believing there is a real risk the applicant will suffer significant harm if he is removed to Sri Lanka[7], the Tribunal gave comprehensive consideration to the materials before it.

Relationship with Mr S, attempted abduction and imputed association with TMVP

[6] s.36(2)(a) Migration Act (1958).

[7] s.36(2)(aa) Migration Act (1958).

1. The Tribunal accepted that the applicant was a distant relative of Mr S and that he had been active in assisting Mr S in a municipal council election campaign in 2008.  It accepted that the applicant had some ongoing intermittent contact with Mr S after the election campaign when they would see each other at work.  It further accepted that Mr S had gone missing in 2010 and that fears had been raised that he had been abducted by the army or the CID.  The Tribunal accepted that Mr S was a high level member of the LTTE.

2. The Tribunal accepted that the applicant had a subjective fear that the 2012 attempt to extort money from him, and the threat of abduction associated with that, were possibly related to his prior association with Mr S.  However, the Tribunal found, for a number of clearly identified reasons,[8] it was more likely that he was the victim of a random extortion attempt by opportunistic criminals and not targeted for abduction for any political reason.  In part, the Tribunal relied on the fact that the applicant was only a distant relative of Mr S and there was no evidence that any other members of his family had been similarly targeted because of the family connection to Mr S.  It also placed weight on the lengthy period of time between the disappearance of Mr S in 2010 and the attempted extortion and abduction in 2012.

   [8]     Court Book (‘CB’) p.155.

3. The Tribunal found that there was no association between the visit to his house by the unknown men and the attempted abduction in 2012.

4. Accordingly, the Tribunal found there was no real chance now or in the foreseeable future that the applicant would be targeted for a Convention reason by the Sri Lankan Army, paramilitary groups, supporters of other political parties, or any persecutor if he were to be returned to Sri Lanka.[9]  The Tribunal gave consideration to all relevant evidence before it in considering whether there were complementary protection obligations to the applicant.  It concluded that even accepting country information which established that paramilitary groups continue to operate in the applicant’s home town, in light of its findings on the facts relating to the applicant’s association with Mr S, and the attempted extortion, there was not a real chance that the applicant would face a real risk of significant harm from further abduction attempts if he were to return to Sri Lanka.

   [9]     CB p.156.

5. There was nothing illogical, unreasonable or irrational in the findings made by the Tribunal in this regard.  It cannot be said that the Tribunal had regard to irrelevant material or that it failed to take into account relevant material.  The integers of the claims made by the applicant on these matters were fully considered by the Tribunal and it cannot be said that the Tribunal took a mere ‘formalistic’ approach to the facts and merits of the applicant’s claims on these matters.[10]

Claims relating to Tamil ethnicity

[10]    Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 80.

1. In assessing the applicant’s claim that if he were to return to Sri Lanka he would be harmed because he is a Tamil, the Tribunal considered a significant amount of independent evidence[11] in addition to the claims made by the applicant himself.  The Tribunal considered that not all Tamils “would be imputed with a pro LTTE political opinion just because they are Tamil”.[12] The Tribunal accepted that the DFAT country report established that Tamils in Sri Lanka had historically faced some harassment and discrimination by virtue of their ethnicity and that this might continue, but that there was only a speculative and accordingly not a real chance that the applicant would suffer serious harm because he was a Tamil, because of any political or other convention reasons now or in the reasonably foreseeable future if he returned to Sri Lanka. There is no reason to conclude that the Tribunal made an error of law by misapplying or misinterpreting the provisions of ss.36(2), 91R and 91S of the Act when considering the criterion for granting a protection visa for Convention reasons. On the basis of the material before it, the finding was open to the Tribunal.

   [11]    UNHCR 2012 Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka; GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG[2013] UKUT 319 (IAC); Human Rights Watch 2014 World Report, Sri Lanka, 21 January 2013; Y Sooka, March 2014 “An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009-2014”; Amnesty International 2014, Ensuring Justice: Protecting Human Rights for Sri Lanka’s Future, ASA September 2014.

   [12]    CB p.157.

1. In considering the complementary protection obligations, the Tribunal was not satisfied that any harassment or discrimination would cause extreme and unreasonable humiliation and was not satisfied that any harm arising from such harassment or discrimination would amount to significant harm.  On the evidence before it, that finding was clearly open to the Tribunal.

2. In rejecting the claim made on Convention grounds and the claim for complementary protection, there was nothing illogical, unreasonable or irrational in the findings made by the Tribunal in this regard.  Nor can it be said that the Tribunal had regard to irrelevant material or that it failed to take into account relevant material. 

3. I find that there was no jurisdictional error made by the Tribunal in assessing this aspect of the Applicants claims.

Returned failed asylum seeker and illegal departure

1. The Tribunal correctly found that in making a claim to be in fear of persecution if returned to Sri Lanka because of his status as a returned failed asylum seeker, the applicant had identified a Convention ground based on his membership of a particular social group.[13]  The applicant claimed to fear that he would be persecuted on this basis although he was not able to articulate what might happen to him or the circumstances in which this might occur.  It was open to the Tribunal on the evidence before it to conclude as it did that, “not all failed asylum seekers are imputed with anti-government or pro LTTE opinion by the Sri Lankan authorities”, and further that the applicant did not have the profile of a person with links to the LTTE.[14]  I am not satisfied that the Tribunal failed to properly consider the claim made by the applicant, or that it ignored any relevant matter, or relied on any irrelevant matter when considering this claim. There was no jurisdictional error of the kind identified in Yusuf’s case (supra) in the Tribunal’s consideration of this claim.  Similarly, a consideration of the Tribunal’s reasoning with respect to any complementary protection obligations discloses no jurisdictional error on its part.

   [13]    Applicant A and Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

   [14]    CB p.159.

2. The Tribunal considered and discussed with the applicant his likely prosecution for having left Sri Lanka illegally.  The Tribunal considered both the basis on which the applicant might be charged on his return and the relevant country information that described conditions on remand and the sentencing for such offences by the Sri Lankan courts.  In my view, there was no jurisdictional error in the finding by the Tribunal that the offence for which the applicant was liable to be prosecuted, created under the Sri Lankan Immigration and Emigration Act of 2006, was a law of general application and that the act would not affect the applicant for any Convention reason. There was no failure to consider any relevant matter or reliance any irrelevant matter or a failure to consider the complaint of the applicant himself that might give rise to jurisdictional error. There was no jurisdictional error in the finding of the Tribunal that the applicant failed to meet the requirements of s.36(2)(aa) with respect to complementary protection obligations.

3. I find that the Tribunal did not fail to consider the entirety of the applicant’s claims discussed above.

Conclusion

1. I find that the applicant has not established that the decision of the Tribunal was affected by jurisdictional error.  I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 21 December 2015