Axl17 v Minister for Immigration
[2018] FCCA 2077
•31 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXL17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2077 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal considered all submissions, evidence and material before it – whether Administrative Appeals Tribunal failed to take relevant material into account – whether Administrative Appeals Tribunal applied the correct relocation test – whether the Administrative Appeals Tribunal considered all relevant evidence on the issue of relocation – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 411, 422B, 424A, 424AA, 425, 474, 476 Migration Regulations 1994 (Cth), reg.2.01, sch. 1 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 SZATV v Minister for Immigration and Citizenship and Anor (2007) 233 CLR 18 |
| First Applicant: | AXL17 |
| Second Applicant | AXM17 |
| Third Applicant | AXN17 |
| Fourth Applicant | AXO17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 639 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 31 July 2018 |
| Date of Last Submission: | 31 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tony Silva, by direct access |
| Solicitors for the Respondents: | Ms Chloe Hillary (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 639 of 2017
| AXL17 |
First Applicant
| AXM17 |
Second Applicant
| AXN17 |
Third Applicant
| AXO17 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 8 February 2017 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 23 December 2014 refusing the applicants Protection (Class XA) visas (“Protection Visa”).
The first named applicant (“the Applicant”) is the primary visa applicant. The second named applicant is the Applicant’s wife, and the third and fourth named applicants are their children. The second, third and fourth applicants form part of the family unit of the Applicant.
The applicants are a citizens of Sri Lanka and of Buddhist faith and Sinhalese ethnicity, who fear harm from supporters of the United Peoples Freedom Alliance (“UFPA”) political party in Sri Lanka.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.
Background
The Applicant arrived in Australia with his spouse and two children, as holders of Visitor (Class FA) (Subclass 600) visas which were granted on 22 March 2014 and valid to 11 May 2014.
On 28 April 2014, the Applicant lodged an application for a Protection Visa with the Department of Immigration and Border Protection (“the Department”).
On 23 December 2014, the Delegate refused the Applicant’s application for a protection visa.
On 19 January 2015, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 8 February 2017, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a Protection Visa.
On 6 March 2017, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative Framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The Applicant’s application for a Protection Visa
The Applicant provided a statement in support of his Protection visa application in which he stated:
a)He is applying for political asylum on the basis of his involvement with the United National Party (“UNA”), Sri Lanka’s main opposition party.
b)His parents, wife’s parents and grandparents have been strong UNP supporters, and he has many relatives and friends in the party. A former Treasurer of the UNP is a relative of the Applicant’s, and his mother-in-law was appointed the President of the UNP Trade Union in 2001.
c)The Applicant served as a Medical Assistant in the Sri Lankan Navy until December 2013, when he got three months leave prior to retirement and began working in a medical centre in Gampaha.
d)The house next door to the Applicant’s belonged to (now deceased) a brother of a provincial councillor in the Western Provincial Council.
e)In early January 2014, the UPFA government dissolved the Southern and Western Provincial Councils. A provincial councillor began to visit the Applicant’s house very often during this time and had long talks with the Applicant’s mother-in-law and father-in-law. The councillor asked the Applicant if he would be interested in helping him in the future elections he was intending to contest. The Applicant agreed to help him when he had time.
f)The UFPA government holds provincial elections in one province at a time, and assigns thugs to intimidate and threaten members and supporters of opposing parties.
g)The Applicant began to work intensely for the provincial councillor from February 2014. The Applicant’s vehicle was used to transport posters, notices and pamphlets. The Applicant also went door-to-door campaigning alongside the councillor.
h)In March 2014, the Applicant began receiving threatening phone calls at his house in Kelaniya. One caller told the Applicant that he should not get involved in politics or in supporting the provincial councillor.
i)The Applicant’s parents-in-law also began receiving threatening calls in the house the Applicant and his family share with them.
j)The Applicant also received an anonymous threatening letter by post, which warned him to refrain from supporting the opposition party in the future.
k)The Applicant made two complaints to the Sri Lankan Police in Kelaniya about the threatening incidents.
l)The incidents were reported in Sri Lankan newspapers.
m)Although the Applicant’s wife, parents-in-law and children were very scared and asked the Applicant to not get involved in politics, the Applicant continued to canvass support for the provincial councillor.
n)On 28 March 2014, the Applicant was approached by an unidentified group and threatened at gun point. The group warned the Applicant that if the UNP won the election, they would kill the Applicant. They also told the Applicant not to tell the police about what had happened.
o)Around January 2013, a council member of Kelaniya was murdered by motorcycle gunmen just outside his house in Kelaniya.
p)On 18 March 2014, a retired post master and UNP supporter in Kelaniya was killed by unknown persons. It was a political killing.
q)The Applicant moved and stayed out of Kelaniya until he departed Sri Lanka, with his family, on 10 April 2014.
r)The Applicant’s father-in-law is still receiving phone calls from unknown persons, asking for the Applicant.
s)The Applicant fears returning to Sri Lanka with two children as he strongly believes that if he returns he will be targeted by thugs associated with the UPFA.
t)The Applicant cannot live in any other part of Sri Lanka as UPFA supporters are everywhere in the country. They will find out who the Applicant is and the Applicant will have problems.
The Delegate’s decision
On 15 October 2014, the Applicant attended an interview with the Delegate.
On 23 December 2014, the Delegate refused the Applicant’s application for a Protection Visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
The Tribunal’s review and decision
On 19 January 2015, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
16 March 2016, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 10 May 2016 to give oral evidence and present arguments.
On 10 May 2016, the applicants attended the Tribunal hearing and gave evidence. The Tribunal first took evidence from the Applicant, and then from the Applicant and his wife, the second named applicant, together.
At hearing, the Applicant provided a bundle of documents to the Tribunal with an accompanying written submission. The bundle of documents included an acknowledgement of complaint made by the Applicant’s father-in-law to the Kelaniya police station, and media articles which the Applicant claimed provide evidence of continuing political violence, the activities of underworld hooligans and the inactive and inadequate response of the Sri Lankan police. Some articles were undated, others ranged in date from 2013 to 2016. The Tribunal noted that a number of articles referred to police investigations into clashes between the UPFA and the UNP. The Tribunal decision record notes that it considered the articles on face value even where the source or date of the article was unclear.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal explored the Applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal identified with particularity the country information to which it had regard. The Tribunal put to the Applicant country information for comment.
The Tribunal noted that in assessing the credibility of the applicants’ claims, it accepted that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims. The Tribunal also noted that it had made allowances for the fact that the adult applicants may have been nervous appearing before the Tribunal.
The Tribunal noted that the Applicant had not claimed, nor was there any evidence that indicated, that he would be of any adverse interest to the Sri Lankan authorities for any reason.
The Tribunal noted that at hearing the Applicant’s evidence about when he first became involved in the UNP was “confused”: The Tribunal noted that it had given the Applicant “the benefit of the doubt” and accepted that he became a member of the UNP in 2007. The Tribunal found that it was possible the Applicant had limited involvement in a UNP campaign in the late 1980s, but found that he was not active in his support of the party until 2014 when he supported an election campaign.
In respect of the letter submitted by the Applicant to the Tribunal from a UNP councillor, which states that the Applicant was an ardent and active supporter of the UNP in provincial council, general and presidential election campaigns, the Tribunal noted that information was inconsistent with the Applicant’s evidence that in the last two decades the only campaign where he actively supported the UNP was the 2014 Western Provincial Council elections.
The Tribunal accepted that the Applicant worked as a campaign worker in the role of coordinating secretary for a UNP councillor in the 2014 Western Provincial Council elections.
The Tribunal found the Applicant’s evidence in respect of the threats he received to be vague. The Tribunal noted that the Applicant was repeatedly asked at hearing whether he was threatened in person; the Applicant initially said he was not, but subsequently restated his written claims, saying he was threatened at gunpoint on 28 March 2014. However, the Tribunal noted that there is country information indicating that there was inter-party conflict in the Western Provincial Council elections and, in that context, was prepared to accept as plausible that the Applicant received two threatening letters and threatening phone calls and that he was threatened and assaulted at gunpoint, as claimed.
The Tribunal did not accept the Applicant’s claims that his father-in-law received threats against the Applicant and his family members after they left Sri Lanka. The Tribunal noted that when the Applicant was asked why these unidentified persons would continue targeting him after he left Sri Lanka, the Applicant’s response was “vague and unpersuasive”. The Tribunal noted country information reporting on politically motivated violence that occurred during the 2014 Provincial Council elections, but found that given the election was held on 29 March 2014, the Applicant had no further involvement in the UNP after 28 March 2014 and left Sri Lanka on 10 April 2014, it was not plausible that the unknown people who opposed the UNP would repeatedly contact the Applicant’s father-in-law by telephone looking for the Applicant, most recently in January 2015, over 8 months after the Applicant left Sri Lanka. Nor did the Tribunal accept that these unidentified persons sent a threatening letter to the Applicant’s family home in May 2014, as claimed.
The Tribunal noted that in reaching this conclusion it considered the documentation of police complaints submitted by the Applicant. The Tribunal noted that country information indicated that fraudulent documentation is readily available, and put this information to the Applicant at hearing. The Tribunal noted that in light of this country information, it could give little weight to the documentation produced by the Applicant. The Tribunal further noted that even if the documents were accepted at face value, they only show that complaints were made to the police; they do not explain what the complaints were about, or establish whether there was a factual basis for the complaint.
The Tribunal referred to a translation of a Sinhalese document that was purportedly sent to the Applicant’s home which was contained in the Departmental file, but noted that the translation did not reveal when the letter was sent or who its author was and, “given such a letter could have been easily manufactured”, the Tribunal gave it little weight.
The Tribunal did not accept that the Applicant is of any ongoing adverse interest to any person or group in Sri Lanka.
The Tribunal put to the Applicant at hearing that the UNP won 106 out of 225 parliamentary seats in the August 2015 general election, and referred to country information on the party’s electoral success. The Tribunal noted that, in light of the Applicant’s vague and unpersuasive responses about his interest in involving himself in politics in the future, it had serious doubts about whether the Applicant would be motivated to actively involve himself in the UNP if returned to Sri Lanka. However, the Tribunal noted that even if the Applicant were to actively support the UNP in the future, the Tribunal was not persuaded that there is a real chance that he would face serious or significant harm if he did so.
In any event, the Tribunal noted Department of Foreign Affairs and Trade (“DFAT”) advice which noted that political parties and their leaders and supporters can generally operate open and freely in Sri Lanka today.
In the circumstances, the Tribunal did not accept that there was a real chance that the Applicant would face persecution in Sri Lanka in the reasonably foreseeable future simply because of his support of the UNP.
The Tribunal considered the country information submitted to it by the Applicant about the treatment of UNP supporters. The Tribunal noted that DFAT had reported more than 1100 election law violations across Western and Southern province; however, the Tribunal also noted that independent Sri Lankan observers reported that the elections were conducted in a relatively fair and free manner. The Tribunal assessed that the country information, including DFAT advice, did not indicate that UNP members and supporters are – without more – exposed to a real chance of serious or significant harm because of their political beliefs and activities.
The Tribunal further noted that in light of the time that had passed since the 2014 provincial council elections, the changed political environment in Sri Lanka, and the Tribunal’s findings in respect of the Applicant’s claims to be of ongoing interest to unknown persons in Sri Lanka after leaving the country, it did not accept that the Applicant was of any ongoing adverse interest to anyone in Sri Lanka because of his role supporting an election campaign. Accordingly, the Tribunal was also not satisfied that there was a real chance that the Applicant’s wife and children would be targeted as claimed.
The Tribunal considered, “out of an abundance of caution”, whether, even if it accepted that there was a real chance that the Applicant would again attract the attention of the same unidentified thugs if he returned to Sri Lanka and actively supported the UNP in Kelaniya, he could avoid the harm he fears by relocating to another part of Sri Lanka, such as Matale, some 120 kilometres away from Kelaniya
The Tribunal noted that given the time that had passed since the March 2014 provincial council elections, and in light of the UNP now holding 106 of Sri Lanka’s 225 parliamentary seats and of country information concerning the political environment in Sri Lanka, it did not accept that there was a real chance that the unknown persons who threatened and assaulted the Applicant during the 2014 provincial council elections would be aware of the Applicant’s return to Sri Lanka. Even if these persons were alerted to the Applicant’s return, the Tribunal did not accept that the unknown persons would be motivated to pursue the Applicant elsewhere in Sri Lanka. The Tribunal further noted that while the Applicant expressed concern about ‘white van’ abductions in Sri Lanka, it did not accept that the Applicant would be of any adverse interest to any person or group if he relocated from Kelaniya district to another part of Sri Lanka.
In reaching this conclusion the Tribunal also considered the possibility that the Applicant may actively support the UNP if he returns to Sri Lanka and relocates. Having regard to country information which indicates that elections in Sri Lanka are generally free and does not identify UNP supporters or campaign workers as groups in need of protection, the Tribunal considered that the Applicant would be able to participate in the UNP should he choose to do so. The Tribunal acknowledged that there were some reports of violence between political supporters at election time in Sri Lanka. However, found that given the Applicant is not a high profile politician or a national-level activist, it considered the chance that he would be affected by election-related violence or targeted if he returns to Sri Lanka simply because he supports the UNP or works as a UNP campaign worker, to be remote.
The Tribunal further found that as it did not accept that there is a real chance that the Applicant would face serious harm if he relocates to another part of Sri Lanka, it did not accept that there was a real chance that the Applicant’s family would face harm of any type (including serious harm) if they relocate to another part of Sri Lanka with the Applicant.
The Tribunal was satisfied that it would be reasonable, in the sense of practicable, for the applicants to relocate to another part of Sri Lanka. The Tribunal noted that the applicants had demonstrated their resilience and capacity to relocate by moving from Sri Lanka to Australia, and that they have family networks in other parts of Sri Lanka, including in Matale where the Applicant was born and has previously lived.
Having considered the Applicant’s claims, the Tribunal found that there was no evidence to support a finding that the Applicant or his family would suffer harm for a Convention related reason were he to return to Sri Lanka, that the Applicant did not have a well-founded fear of persecution in Sri Lanka and for this reason the Applicant was not a person to whom Australia owed protection obligations.
The Tribunal also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The Tribunal noted that even if it were to be accepted that there is a real risk that, if the Applicant returned to Kelaniya, he might be targeted and harmed by the unknown persons he claimed threatened and assaulted him in 2014 because of his support for the UNP, the Tribunal was satisfied that this risk is localised and only exists in the Applicant’s home area. The Tribunal did not accept that there is a real risk that the Applicant or his family would be subject to significant harm at the hands of UPFA supporters or any other person or groups if he were to relocate to another part of Sri Lanka, such as Matale, even if he continued to actively support the UNP. Further, the Tribunal found that relocation was safe and reasonable in all the circumstances of the applicants’ case.
Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to the receiving country, Sri Lanka, there is a real risk that the Applicant or his family would suffer significant harm.
Accordingly, having determined that the Applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.
The proceeding before this Court
The applicants were represented before this Court by Mr Anthony Silva, of counsel.
At the commencement of the hearing, by consent, the Applicant was given leave to rely upon an Amended Application filed on 23 July 2018.
The grounds contained in the Amended Application are as follows:
“(1) The Tribunal made jurisdictional error in that the Tribunal failed to consider an issue it was required to consider or failed to ask a question it should have asked, that is "What is the reason for the perpetrators to attack and threaten the main applicant around midnight on 28 March 2014 just before the election day on 29 March 2014?" or ask any question similar in substance
Particulars
(a) At CB587[83] the Tribunal stated that:
On the evidence before me, I am prepared to give the applicant the benefit of the doubt and accept that he worked as a campaign worker in the role of coordinating secretary for George Perrarra (GP) in the 2014 Western Council provincial elections.
(b) At CB 268 [second paragraph] the applicant's evidence on the 28 March 2014 incident was referred to by the Tribunal at CB574 [22] in the following terms:
On the 28th March 2014 I was approached by an unidentified group and threatened at gun point. They warned if [name] wins the election they will kill me. They also warned that I should not inform Police about this.
(c) At CB578[44] the Tribunal referred to who was behind the threat:
I asked the applicant who would threaten him. He said the Kelaniya region was very famous for political violence and retaliation. There was a strong politician in that area during the previous government and his supporters were the people who threatened him and gave him death threats.
(d) At CB588[87] the Tribunal accepted what happened to the applicant on 28 March 2014 but didn't accept any further harm occurred to him after the elections and it stated that:
... I accept that during the campaign he received threatening phone calls and letters warning him to stop supporting the UNP and that on 28 March 2014 he was threatened and assaulted by unknown assailants. I accept that he reported the threatening phones call to the police. I accept that on 10 April 2014 he departed Sri Lanka in the company of his family members. However; I do not accept that, after he departed Sri· Lanka, his father in law repeatedly received calls threatening the applicant and that a threatening letter was sent to the applicant at his father-in-law's home as claimed in around May 2014 or at any other time. I do not accept that the applicant is of any ongoing adverse interest to any person or group in Sri Lanka.
(e) The campaigning was finished by the time of the mid night 28 March 2014, so the purpose of the attack on the applicant was not to stop him from campaigning further but to take revenge for what he had already done. This is reinforced by their threat to the applicant that they will kill him if [name] wins the election.
(f) Therefore, had the Tribunal asked the question it is alleged that it failed to ask, it would have become apparent to the Tribunal that the perpetrators were motivated to take revenge after the election and they were not intending to stop harming him once the election was over.
(g) If that is the case, after [name] won the election the next day, they would have been still motivated to threaten or harm the applicant in revenge. This would have impacted on the Tribunal's consideration and assessment of whether there was a threatening letter to the applicant in May 2014 just one month after he left Sri Lanka received at his father in law's place and whether there were further threatening calls to his father-in-law's place in 2015.
(h) The Tribunal appears to think (See CB 587[85] & 589[92]) that once the election is over there would not be a threat to the applicants, because it failed to ask the question it should have asked.
(2) The Tribunal made jurisdictional error in that (i) in assessing whether the applicant could relocate the Tribunal applied the wrong test for relocation and (ii) it failed to deal with the applicant's claim about relocation in that it is only short distance between Kelaniya and Ma tale and that UNF A have sharp intelligence and they can find where .people are
Particulars
(a) In considering whether the applicant could reasonably relocate to another place within the country the Tribunal also considered the implications from its assessment that the applicant will not be persecuted at the first place of residence. Thus it allowed the second part to influence the first part which it should not have. The two issues are separate, that it, its relocation consideration necessarily assumes that he will be persecuted at the first place of residence. Therefore, in that consideration in cannot take into consideration the fact that it did not find that the applicant will be persecuted in the first place of residence.
(b) The error can also be described in various ways. It can be said that the Tribunal took irrelevant issue in the consideration of relocation. Put it another way it can be said that the Tribunal confused the issue of relocation with whether the applicant would have real chance of harm at his earlier place of residence. The Tribunal stated at [94] that I find that, even if it were to be accepted that there was a real chance that the applicant will be harmed in Kelaniya by the same unknown persons who threatened him before he travelled to Australia, he could avoid the harm he fears in his local area by relocating to another part of Sri Lanka such as Matale, which is some 120 kilometres away from Kelaniya;
(c) The Tribunal then continued on the same paragraph contradicting the proposition it assumed to be correct for relocation consideration in the first part of [94].
Well over two years have passed since the applicant was last in Sri Lanka and, given the passage of time and the fact that he only supported the UNP in one provincial council election and is not a high profile politician or a high profile activist with a national profile, I do not accept that it is plausible that any person or group in Kelaniya is still looking for the applicant or that he is currently of any adverse interest to anyone in Sri Lanka.
(d) Thus it allowed the second part to influence the first part which it should not have. The two issues are separate.
( e) Further the Tribunal just speculated at [94] that he could avoid the harm he fears in his local area by relocating to another part of Sri Lanka such as Matale, which is some 120 kilometres away from Kelaniya. At [95] the Tribunal stated that:
I do not accept that there is a real chance that the unknown persons who threatened and assaulted the applicant during the 2014 provincial council elections would be aware of the fact that he and his family had returned to Sri Lanka and, even if they became aware of this fact, I do not accept that they would be motivated to pursue the applicant elsewhere in Sri Lanka.
(f) However it didn't deal with the applicant's claim about relocation in that it is only a short distance between Kelaniya and Matale and that UNF A have sharp intelligence and they can find where people are.”
(Emphasis in original)
Ground 1
Ground 1 asserts that the Tribunal erred in failing to ask itself what was the reason for the threat and attack upon the Applicant around midnight on 28 March 2014, just before the election day on 29 March 2014.
Counsel for the Applicant, Mr Silva, submitted that the Tribunal failed to consider that the threat and attack upon the Applicant around midnight on 28 March 2014 were motivated by revenge. Mr Silva submitted that the Tribunal must consider what might cause revenge on the part of the perpetrators. Mr Silva submitted that the timing of the incident was around midnight, and that the election campaign was finished at midnight on 28 March 2014, in which case the attack on the Applicant was for revenge, rather than to stop him campaigning further. Mr Silva submitted that the Applicant was threatened with death if the UNP councillor won the election. Mr Silva submitted that the timing of the attack and the threat of death reinforced that the motivation was revenge. In those circumstances, that motivation would continue after the election, and should have impacted upon the Tribunal’s consideration and assessment of the veracity of the threatening letter allegedly sent to the applicant in May 2014.
However, the Tribunal noted that it asked the Applicant why the unidentified persons would continue to target him after he left Sri Lanka and found the Applicant’s response to be “very vague and unpersuasive.”
The Tribunal noted that it had considered the reports of politically motivated violence. Mr Silva referred the Court to various information provided by the Applicant referring to election-based violence. However, given that the election was held on 29 March 2014 and the Applicant left Sri Lanka on 10 April 2014, with no further involvement in the UNP after 28 March 2014, the Tribunal rejected that the unidentified opponents of the UNP would continue to contact the Applicant’s father in law and send a threatening letter to the Applicant’s family home in May 2014.
Mr Silva framed Ground 1 as a failure to consider evidence and referred to various authorities in support (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164).
Mr Silva submitted that the Tribunal failed to take into account relevant material. I understood Mr Silva’s submission to be that the motivation for the threats against the Applicant on 28 March 2014 should have been seen through the prism of references to election-based violence, the timing of the threat around midnight the night before the elections, and the post-election threats against the Applicant’s father in law, together with the May 2014 threat directed at the Applicant.
True it is that the Tribunal must deal with any claim that squarely arises on the material before it (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593).
However, the Applicant was given every opportunity to present evidence at the hearing. Mr Silva read the affidavit of the Applicant affirmed 20 July 2018, annexing a copy of the transcript. The transcript discloses that the Applicant was asked several open-ended questions that would have provided the opportunity for him to assert that the attack upon him was based upon a desire for revenge. For example, “so why would you be at risk of harm, sir?.” The Applicant answered “because even very recently, people were looking for me.” The Tribunal Member explored in some detail the Applicant’s history of threats and in particular the night of 28 March 2014.
Mr Silva took the Court to various parts of the transcript where the Applicant asserted that the unidentified opponents or perpetrators were still looking for him. The Tribunal put to the Applicant that he did not appear to be a high profile UNP politician or activist, so why would he be at risk of harm if he returned to Sri Lanka because of events that occurred in 2014. The Applicant responded that some time ago other persons had been killed or threatened, but was unable to name who they were.
The Tribunal explored in detail why the unidentified perpetrators may continue to target him after he left Sri Lanka and ultimately found that because of his low profile and involvement in only one council election, the chance that he would be affected by election-related violence, or targeted if he returned to Sri Lanka simply because he supported the UNP as a campaign worker, to be remote.
In light of the evidence and material before the Tribunal and the multiple opportunities for the Applicant to identify his claims and the reasons for his fears. No such claim arose squarely on the material before the Tribunal. The Applicant did not ever suggest that the threat on 28 March 2014 was motivated by revenge.
The Tribunal found that the Applicant had embellished his evidence that he was of ongoing interest to unknown persons in Sri Lanka after he left and found that the same unknown people who threatened him in 2014 would not be motivated to target him or his family members if they returned to Kelaniya. The Tribunal was not satisfied that the Applicant would be of adverse interest to any person or group in his home area.
In the circumstances, the Tribunal properly considered the risk to the Applicant if he was to return to Sri Lanka as a low profile campaign worker involved only in the 29 March 2014 elections. The Tribunal’s findings that the Applicant would not be at risk for those reasons if he returned to Sri Lanka, were open to it on the evidence and material before it and for the reasons it gave.
As stated above, the Tribunal’s findings were open to it for the reasons it gave.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal erred in assessing whether the Applicant could relocate. Counsel for the Applicant submitted that the Tribunal applied the wrong test for relocation and did not deal with an aspect of the Applicant’s claims related to relocation about the “sharp intelligence service in UPFA government” and “they could find where people are and what their activities are.”
The Applicant submitted that the issue of relocation arises only where a decision maker is satisfied that an applicant may be persecuted at the first place of residence. The Tribunal stated that:
“I find that, even if it were to be accepted that there was a real chance that the applicant will be harmed in Kelaniya by the same unknown persons who threatened him before he travelled to Australia, he could avoid the harm he fears in his local area by relocating to another part of Sri Lanka such as Matale, which is some 120 kilometre away from Kelaniya. Well over two years have passed since the applicant was last in Sri Lanka and, given the passage of time and the fact that he only supported the UNP in one provincial council election and is not a high profile politician or a high profile activist with a national profile, I do not accept that it is plausible that any person or group in Kelaniya is still looking for the applicant or that he is currently of any adverse interest to anyone in Sri Lanka.”
The first respondent concedes that the Tribunal was not required to consider relocation given its lack of satisfaction that the Applicant would face serious or significant harm on return to Sri Lanka. The first respondent submitted that because relocation was an alternate finding, even if it was affected by some jurisdictional error, the Applicant would need to establish jurisdictional error in the Tribunal’s primary finding that the Applicant would not suffer serious or significant harm, for the Applicant to be successful.
It is well settled that in considering the issue of relocation, a decision maker such as a Tribunal must consider whether relocation is reasonable, in the sense of being practicable (see SZATV v Minister for Immigration and Citizenship and Anor (2007) 233 CLR 18; CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14).
The Tribunal was satisfied that it would be reasonable, in the sense of practicable, for the applicants to relocate to another part of Sri Lanka. The Tribunal noted that the applicants had demonstrated resilience and capacity to relocate by moving from Sri Lanka to Australia and earlier from Matale to Kelaniya. The Tribunal found it to be safe and reasonable for the applicants to avoid the harm they claimed to fear from the unidentified persons in their local area.
Counsel for the Applicant submitted that the Tribunal confused the issue of relocation with whether the Applicant would have a real chance of harm at his earlier place of residence and, having found that he did not, it allowed that finding to influence the Tribunal’s assessment of the risk of harm to the Applicant if he was to relocate. Counsel submitted that the Tribunal could not take into consideration the fact that the Tribunal did not find that the Applicant would be persecuted in the first place of residence.
I do not accept the Applicant’s submissions that the Tribunal committed jurisdictional error in considering relocation in the manner that it did. The Tribunal prefaced its consideration of relocation by stating as follows:
“Nonetheless, out of an abundance of caution, I have considered whether, even if it were accepted that there was a real chance that the applicant would again attract the attention of the same unidentified thugs if he actively supported the UNP in Kelaniya, he could avoid the harm he fears in his home area by relocating to another part of Sri Lanka.”
I accept the submission of the first respondent that the question of whether the Applicant is of ongoing interest is undoubtedly relevant to the question of whether the Applicant can relocate to avoid any harm. I understand the Tribunal’s findings to be that because of the passing of time and the low level involvement of the Applicant in one local council election, no one would be motivated to pursue the Applicant to a different part of Sri Lanka.
The Tribunal applied the conventional relocation test in considering the issue of relocation, which it was entitled to do.
Ground 2 also asserted that the Tribunal failed to consider the Applicant’s evidence as to why he could not avoid the harm he feared by relocating to another part of Sri Lanka, such as Matale, where he was born.
It is well accepted that an applicant’s reasons for not wanting to relocate should be considered (see MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; SZVRA v Minister for Immigration and Border Protection [2017] FCA 121).
Counsel for the Applicant took the Court to the transcript where that issue was explored with the Applicant and where the Applicant stated as follows:
““53. I asked why he couldn't avoid the harm he feared by relocating to another part of Sri Lanka, such as Matale where he was born. He responded that Sri Lanka was a small country and you could travel from one end to another in three hours. He said the UPFA could find out where people are. People abducted people in white vans and no one knew who did this. I acknowledged that there could be violence around election times in Sri Lanka but there are lots of UNP supporters in Sri Lanka and the applicant had only been involved in one campaign in 2014. I put to the applicant that it was difficult to understand why the thugs that targeted him in this campaign would be aware that he had returned to Sri Lanka if he relocated to another part of Sri Lanka such as Matale. He said that there was no guarantee he would not be killed.
54. I put to the applicant that I had to consider whether there was a real chance he would be harmed. I asked the applicant why, if he relocated to another part of Sri Lanka, would the people who threatened him during the 2014 provincial council election still be motivated to pursue him because he supported the UNP in 2014. The applicant said he didn't think the UNP would be in power forever, in a year or two they would probably lose power. Those people who were threatening before would come into power and start the same practice of threatening and killing people as they had before. I put to the applicant that it was not clear to the Tribunal why, if he returned to Sri Lanka, he would be at risk of harm. The applicant said his life was saved once and, if he went back to Sri Lanka, there was no guarantee for his life.”
That is the evidence that counsel for the Applicant submits was ignored by the Tribunal. Such a submission is not made out in light of the Tribunal’s detailed reference to that evidence and its summary of its exploration with the Applicant of that evidence. The Tribunal also referred specifically to the120 kilometre distance between Matale and Kelaniya, as cited above. A fair reading of the Tribunal’s decision record makes clear that it was also aware of the relatively short distance between Kelaniya and Matale and the size of Sri Lanka.
Accordingly, the Tribunal’s findings on the issue of relocation were open to it on the evidence and material before it and for the reasons it gave. Those findings are without error.
Accordingly, Ground 2 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal identified independent country information to which it had regard and which it discussed with the Applicant. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 31 July 2018
1