AXQ15 v Minister for Immigration

[2015] FCCA 3195

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXQ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3195

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – illogicality – whether an alleged inconsistency in the Tribunal’s reasons was so illogical or irrational as to give rise to any jurisdictional error – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: AXQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1509 of 2015

Judgment of: Judge Street

Hearing date: 1 December 2015

Date of Last Submission: 1 December 2015

Delivered at: Sydney

Delivered on: 1 December 2015

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Stephen Hodges Solicitor

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1509 of 2015

AXQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 29 April 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant left Sri Lanka on 3 June 2012 and entered Australia as an illegal maritime arrival, arriving at Christmas Island on 24 June 2012.

2. In substance, the claims of the applicant were that he feared harm based on his Tamil ethnicity, his imputed LTTE political opinion due to both his ethnicity and origins from the Northern Province, his membership of the political social group of Tamil business owners or their family members, and membership of a particular social group of failed Tamil asylum seekers, as well as being an illegal departee from Sri Lanka.  The ground of the amended application is as follows:

   Ground 1

   The decision of the AAT is affected by error because the reasoning at [70] is so illogical and/or so inconsistent with the findings at [63] that it should be set aside:

3. This was a case where the applicant had, for a period of six years, relocated from his home province and worked for his uncle at a particular location for a period of six years.  The applicant returned to his home area in early 2010, and, as a result of his treatment, he returned to the location where he had been working with his uncle from May 2010 until December 2011. 

4. The applicant returned to his home location due to his mother’s illness in December 2011 until his departure for Australia in June 2012 and was subjected by the army to a requirement of unpaid work, and the army visited the applicant’s home and threatened and intimidated the applicant and his family in his home area.  The Tribunal also found that the army in [J] made inquiries about the applicant after his departure from Australia. 

5. The Tribunal found that the applicant, in his home area, had been exposed to conduct by the army that constituted serious harm.  The Tribunal identified that the targeting by the army in that home area had been opportunistic and that the harm was localised and explained reasons for that finding.  Relevantly, the Tribunal found:

   44. The applicant’s adviser has submitted that the applicant’s home area should be considered as [J] for the purposes of this assessment. Whilst the Tribunal considers there are strong arguments to suggest that the applicant has two home areas, namely [J] and [B], given the extensive period of time in which he has lived in [B] over the last eight years, and his family and work ties there, the Tribunal assesses the applicant’s claim on the basis of his home area being [J], and considers [B] as a relocation option for the applicant.

   …

   63. In terms of the applicant being forced to work for the army in [J], the Tribunal has been satisfied with the truth of the applicant’s evidence in this respect. The Tribunal is satisfied that the applicant has been a target by the army in [J] and subject to forced labour on multiple occasions. It accepts that he and his family have been intimidated by the army on occasions when the applicant has not been able to work for them. The Tribunal accepts that on one occasion, during the first period of adverse treatment by the army in [J], the applicant was made to strip and kneel in the sun. The Tribunal is of the view that the extent of the forced labour, and given the power of the army to ensure compliance, that the applicant has suffered a threat to his liberty that would constitute serious harm for the purposes of s.91R(1)(b) and 91R(2)(a).

   64. The Tribunal considers that the essential and significant reason that the applicant was picked upon to undertake forced labour is his Tamil ethnicity, and that s.91R(1)(a) of the Act is satisfied. The Tribunal is satisfied that the persecution involves systematic and discriminatory conduct, satisfying s.91R(c) of the Act.

   …

   66. The Tribunal considers the extent to which the serious harm that the applicant has a real chance of facing in [J], is localised to [J]. If localised, the potential for relocation needs to be considered. In particular, considering the applicant’s extensive links to [B], the Tribunal considers whether it is reasonable for the applicant to relocate to [B] to avoid the harm.

   67. The Tribunal considers that the targeting by the army in [J] of the applicant is opportunistic. He has been targeted because he is Tamil, who are marginalised by the Sri Lankan authorities, and the majority Sinhalese, and because he provides a ready opportunity for free labour. The Tribunal does not consider that the applicant has been targeted for any other reason, including suspicion of LTTE involvement or that he presents a risk to the security of the state. The Tribunal considers that the harm is localised to the [J] area. In this respect, it notes that the targeting of the applicant began before he returned to [B] in 2010. The applicant provided no evidence that the difficulties that he faced in [J] in this period followed him to [B], such as by the army informing authorities in [B] that the applicant was a person of adverse interest. Indeed, the applicant has given evidence that that police visited the shop on his return to [B] but he was not required to register as he was vouched for by his uncle. This is one factor that suggests to the Tribunal that the harm is localised and there is not a targeting of him by an agency of the state which will follow him       to other parts of Sri Lanka.

   68. It was submitted in the Tribunal hearing, and in the subsequent written submission, that the conduct of the army during the applicant’s second period in [J] was more intense than the first, meaning that the lack of adverse interest in [B] after the initial period is not necessarily suggestive of what might happen now.

   69. The Tribunal does not accept that submission. If there was a broader targeting of the applicant beyond the opportunistic treatment of him, the Tribunal considers that this would have resulted in adverse interest from authorities in [B] when he again moved there in May 2010, noting that the applicant’s evidence of the treatment by the army of him in [J] before that point in time was significant, including being made to strip and kneel in the sun. The Tribunal considers that the adverse treatment of the applicant by the army in [J] is localised to that area, and the targeting of authorities towards him in that area will not follow him to other parts of Sri Lanka.

   70. The Tribunal notes that DFAT Country Report – Sri Lanka comments that is unlikely  that individuals can relocate internally within Sri Lanka with any degree of anonymity.19 The UNHCR Eligibility Guidelines for Sri Lanka state that internal flight or relocation   is not available whether feared persecution emanates from the state itself or elements associated with it. However, DFAT assesses that individuals do generally have the ability to relocate internally to minimise monitoring or harassment by local level officials for petty issues.20

   71. The Tribunal considers that the evidence in this case establishes that the harm suffered by the applicant in [J] is opportunistic and localised. Past experience suggests that no adverse interest by the army in [J] has followed the applicant to [B].  Whilst the Tribunal accepts that the issues faced by the applicant in [J] are not petty from his perspective, he has not been targeted as a person of adverse interest to the state, and the Tribunal considers that the treatment of the applicant by the army is conduct of a nature referred to in the qualification of in the DFAT assessment.

   72. In terms of the reasonableness of the applicant relocating to [B], the Tribunal takes into account that the applicant has lived in [B] over extensive periods in the recent past. The applicant resided in [B] for a total period of more than six    years over the eight years from 2004 until 2012. In fact, [B] was virtually a second home to the applicant, and he claims to have travelled there as a safe haven from problems in [J] as well as in [C]. The applicant has family in [B] -his uncle - and, to date, through his uncle, he has had work.

   73. When the Tribunal put to the applicant in the hearing the potential for him to move to [B], the applicant said that his uncle is now old and unwell and that he does not want him in the business working for him. The applicant indicated that his uncle has employed two local Tamils. These points were reiterated in the written submission provided following the hearing.

   74. The Tribunal is prepared to accept that the applicant’s uncle maybe getting old and is unwell, and spending less time in the business. The Tribunal is not satisfied, however, that his uncle does not want him in the business working for him. That is not consistent with the applicant’s uncle’s past willingness to facilitate the applicant leaving difficulties in [J] or [C]. The Tribunal also notes that in the applicant’s adviser’s detailed submission to the Department on relocation to [B], no claim is made on this basis. The Tribunal considers the applicant’s claims in this respect are manufactured.

   75. The Tribunal asked the applicant why he would not be in a position to work outside his uncle’s business, for example as a painter in [B]. The applicant said that he has no contacts in [B], and that the Karuna group might still extort him for money if he worked as a painter. In relation to the first point, the applicant gave evidence in the hearing that when in [B], his uncle insisted that he never leave the shop or their home, and as a result he formed no social group or friends or contacts. The Tribunal does not accept this. It does not accept that the applicant would have lived in [B] for a period of a total of six years and not formed any local connections, notwithstanding security concerns.

   76. In assessing reasonableness, the potential for the applicant and his uncle’s business to be extorted by the Karuna group needs to be considered. The Tribunal considers that the applicant has exaggerated the extent of requests for money and goods given that the applicant’s uncle has continued his business for 30 years, which still operates. The Tribunal has accepted that the applicant himself had to pay out a total of Rs.10,000. Over a period of six years, the Tribunal does not consider this an amount which would constitute serious and significant harm to the applicant. The Tribunal accepts that the applicant would suffer on account of money and goods taken from his uncle, but it does not consider that this has happened to an extent that has created serious or significant harm to the applicant’s uncle.

   77. The Tribunal does not consider that any pattern of requests for money that may happen in the future from the Karuna group, or any other group, will increase beyond that which has happened in the past. The Tribunal is not satisfied that if the applicant works as a painter that he will be subject to requests for money from the Karuna group that leads to a real chance of serious harm. The independent information suggests that groups target ‘businessman’. The Tribunal does not consider that an individual undertaking painting work on his own account falls within this category.

   78. The applicant has claimed in the hearing that he is more at risk than his uncle because he is a young Tamil from [B]. The Tribunal considers, if this were the case now, it would have been even more the case during the period of the civil conflict, yet the applicant made no claim to this effect in his detailed written statement or in his evidence to the delegate of the Minister. The Tribunal does not accept the applicant’s claim that he is more at risk on this basis.

   79. The Tribunal notes that there is no claim that either the applicant or his uncle had suffered physical harm from the Karuna group or any other group.

   80. For all these reasons, the Tribunal does not consider that there exists, in the reasonably foreseeable future, a real chance of the applicant facing serious harm as a result of requests for money or goods, or threats by the Karuna group, or any other group, in [B].

   81. The Tribunal considers, in light of this assessment, given the applicant’s past time spent in [B] and his family connections, that it would be reasonable for the applicant to relocate to [B] to avoid harm in [J], where he would be in a position to work either for his uncle or on his own account as a painter. While the Tribunal accepts that the operation of groups such as the Karana groups may create a difficult atmosphere for businesses in [B], it is to be noted that the Refugees Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense

   82. Considering all the circumstances and evidence, the Tribunal considers that it is reasonable for the applicant to relocate permanently to [B] to escape harm faced by the army in [J] by being forced to work, and in relation to intimidating treatment based on ethnicity.

   83. In terms of claims more broadly based on the discrimination of Tamils, the Tribunal accepts that life for Tamils in Sri Lanka is difficult and that they are subject to discrimination. As is implicit in the UNHCR guidelines, discrimination generally speaking against Tamils does not reach a level that would constitute persecution. The applicant’s particular circumstances need to be considered but there is nothing in those circumstances, beyond the issues already addressed, that would lead the Tribunal to conclude that there is a real chance of the applicant facing serious harm as a result of discriminatory treatment.

   …

   113. The Tribunal does not consider that there is anything in the applicant’s past or profile that creates a real chance of serious harm during the process of questioning at the airport. The Tribunal considers that the applicant is likely be allowed to re-enter Sri Lanka following a brief period of questioning.

   114. In terms of the follow up in his home area, the Tribunal assesses this on the basis that the applicant would relocate to [B]. The Tribunal does not consider that there is any risk to the applicant based on questioning that will occur when he returns to [B]. The Tribunal notes that in the interview with the delegate of the Minister, the applicant was asked whether he needed to register when he went to [B] in 2010. The applicant responded that police visited the shop and because they knew he was a relative of the applicant’s uncle, he did not have to go and register. It is to be noted that this was at a time after the applicant had suffered harm from the army in [J]. This suggests that the applicant is already known in [B], and is not a person of adverse interest. The Tribunal considers there is nothing in the applicant’s profile that would create a real chance of serious harm during the process of questioning when he would return to [B].

   …

   117. On the basis of all the independent evidence, including evidence provided by the applicant’s adviser, the Tribunal assesses the risk of serious harm to the applicant as a result of him being a failed asylum seeker as less than a real chance, other than the risk of a period of detention whilst being investigated at the airport. In term of the risk of being detained, the Tribunal does not accept that any harm that might be suffered by the applicant amounts to persecution because it does not meet the requirements of s.91R(1)(a) or (c).

   118. Based on the totality of the evidence, the Tribunal is not satisfied that the applicant’s circumstances give rise to the applicant facing differential treatment for a Convention reason or reveal a real chance of persecution involving serious harm in connection with the applicant’s unsuccessful application for asylum now or in the reasonably foreseeable future.

   …

   130. The Tribunal has determined each of the applicant’s claims relating to the Refugees Convention and concluded that under the claims on the basis of ethnicity, the applicant does face a real chance of serious harm in [J]. However, the Tribunal has concluded that the harm is localised to [J] and it would be reasonable for the applicant to relocate to [B], such that the applicant does not have a well-founded fear of persecution should he be returned to Sri Lanka.

   131. The Tribunal has determined the other claims relating to the Refugees Convention and determined that under none of these claims does the applicant face a real chance of serious harm, or otherwise satisfy the requirements of s.91R(1), for any of the reasons claimed or arising on the evidence.  The Tribunal also considers the applicant’s claims cumulatively.

   132. Based on all the evidence before it, including the applicant’s claimed past circumstances, and what is accepted of his current personal and family circumstances and profile in Sri Lanka, the Tribunal is not satisfied that the applicant faces a real chance of serious harm, or otherwise satisfies the requirements of s.91R(1), for any of the reasons claimed, or cumulatively, or arising on the evidence, with the exception of harm in [J] on the basis of ethnicity, which the applicant can avoid by relocating. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that the Tribunal is not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.

   Complementary Protection

   133.  It is submitted that, if the applicant is not found to be refugee, he is eligible for complementary protection. This requires that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa).

   …

   137.  The Tribunal considers that the harm inflicted on the applicant by the army in [J] in the past, namely being forced against his will to work, being stripped and forced to kneel in the sun, cumulatively amounts to conduct which causes and is intended to cause extreme humiliation.

   …

   139.  For the reasons canvassed in the section of this decision relating to relocation under the Refugees Convention claims, the Tribunal considers that the significant harm faced by the applicant is localised to [J] and, given all the circumstances, it is reasonable for the applicant to avoid that harm by relocating to [B]. The Tribunal is not satisfied that the nature and the extent of requests for money and goods by the Karuna group, or any other group, that the applicant has a real risk of facing, would constitute cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal is not satisfied that requests in the future – based on what has happened in the past - would cause or be intended to cause ‘extreme humiliation’, being a requirement of the definition of ‘degrading treatment or punishment’.

   140. Other than the opportunistic interest by the army in [J] in the applicant, the Tribunal does not consider that Sri Lankan authorities have any adverse interest in the applicant that would cause him to be at a real risk of suffering any definition of significant harm, and refers to the analysis in the assessment of the Refugees Convention. This includes the process of investigation and questioning at the airport, and questioning on return to [B]. The Tribunal does not consider that the questioning, detentions and threats that occurred to the applicant during the course of the civil conflict result in a real risk of the applicant suffering significant harm if he returns to Nepal.

   141. In terms of the potential for discrimination more generally, beyond the harm inflicted  by the army on the applicant in [J], the Tribunal does accept that Tamils in Sri Lanka face discrimination, as outlined in the independent information. Discrimination,         for example, occurs in university education, government employment and other matters controlled by the government. The Tribunal notes the view of UNHCR that being a Tamil itself does not establish a right to protection based mechanisms – including complementary forms of protection which supports the proposition that the level of discrimination against Tamils in Sri Lanka per se does not reach a level that would constitute significant harm. The Tribunal does not consider there is anything in the applicant’s personal circumstances that would create a real risk of the applicant suffering significant harm based on generalised discriminatory treatment.

   142. The applicant’s adviser provided a report indicating instances where returned asylum seekers had to pay bribes. That report also indicated that returned asylum seekers may be targeted because they were perceived as wealthy. In considering the totality of the independent information referred to in this decision and by the applicant’s adviser, the Tribunal is not satisfied that it establishes that there is a real risk that the applicant would be forced to pay bribes or would be targeted due to a perception of wealth to an extent that will constitute significant harm.

   …

   144.  There are no reports of returnees being given custodial sentences. The Tribunal considers the risk of the applicant being detained for an extended period is remote, based on his personal circumstances.

   …

   146.  While the Tribunal has accepted that the applicant faces a real risk of significant harm by the army in [J], the Tribunal finds that harm is localised and it would be reasonable for the applicant to avoid harm by relocating to [B]. In relation to the applicant’s other claims, considered both singularly and cumulatively, the Tribunal is not satisfied that the applicant faces a real risk of treatment amounting to significant harm as contemplated by s.36(2A) of the Act. The Tribunal is not satisfied on the information before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, he faces a real risk of: being arbitrarily deprived of his life; the death penalty being carried out on him; being subject to torture; being subject to cruel or inhuman treatment or punishment; or being subject to degrading treatment or punishment for any reason claimed or arising on the evidence.

1. Mr Hodges, the solicitor for the applicant, focused on para.70, above, in the context of the finding in para.63 of conduct of treatment of the applicant that was found to constitute serious harm.  Mr Hodges submitted that serious harm by the army was not something that could fall within the qualification identified in the last sentence to para.70 and that it was illogical and irrational and unreasonable to come to such a finding. 

2. Mr Hodges submitted that the treatment involving forced labour on multiple occasions and being made to strip and kneel in the sun was not treatment that could be characterised as “monitoring or harassment … for petty issues”.  Mr Hodges also submitted that the army were not “local level officials” and that the conduct of the army found in para.63 could not rationally be said to be conduct falling within the qualification in the DFAT report identified in para.70. 

3. Mr Hodges submitted that the qualification, found in para.71, of the harm suffered being opportunistic was not consistent with the finding in para.63 and was irrelevant as a characterisation and that the description of the harm suffered being “localised” equally failed to identify a rational basis for the findings made by the Tribunal.  Notwithstanding the focus in ground 1 only upon para.70, it was clear from Mr Hodges’ submissions that his argument was addressed to illogicality or irrationality by reference to para.70, 71 and para.82. 

4. Mr Hodges put that the last clause of the last sentence of para.71 should be construed as the Tribunal characterising the treatment of the applicant as being of a kind falling wholly within the qualification in the last sentence in para.70 and equating the army with being a local level official.  In my opinion, the reasons of the Tribunal have to be read as a whole.  On a fair reading, the Tribunal was well alive to the distinction between the army and the local level officials. 

5. Further, the Tribunal recognised the significance of the finding made in para.63 in relation to the description found in the last sentence at para.70 so far as conduct is concerned and the reference to “…the treatment of the applicant” being, “…conduct of the nature referred to in the qualification of the DFDA tier system” was a finding of fact by the Tribunal that cannot be said to lack an evident and intelligible justification.

6. The Tribunal was entitled in the present case to take into account the relocation that had occurred by the applicant and the nature of the conduct that had occurred in the applicant’s home area.  It is clear that was the subject of careful consideration by the Tribunal as identified in paras.67 and 69.  The limited opportunistic nature of that conduct by the army was also identified in para.140. 

7. In my opinion, on a fair reading of the Tribunal decision, para.71 in the last clause of the last sentence is not to be read as saying that the army was a local level official but rather was focused upon the treatment and the nature of the conduct as identified in the language used by the Tribunal. 

8. Given the applicant’s history, there was clearly an evidentiary basis for the Tribunal’s finding in respect of the opportunistic and local nature of the treatment to which the applicant had been exposed.  The Tribunal also recognised that the treatment was not one that neatly fell within the concept of being petty from the perspective of the applicant. 

9. Nonetheless, it is clear that the Tribunal did take into account the nature of the treatment that had been identified in para.63 in its ultimate finding as to the reasonableness of the applicant being able to relocate permanently to the area in which he had worked with his uncle for a substantial period of time as identified in para.82. 

10. Moreover, it is clear that the Tribunal recognised in para.82 that it was the army that was the subject of the applicant’s fear.  In my opinion the adverse findings by the Tribunal as to the applicant’s ability to relocate cannot be said to lack an evident and intelligible justification. 

11. I do not accept that the reasoning in paras.70 or 71 is so illogical or irrational as to give rise to any jurisdictional error.  I do not accept that the reasoning in paras.70, 71 and 82 is inconsistent with the finding made in para.63 so as to give rise to any jurisdictional error.  Ground 1 of the amended application fails to make out any jurisdictional error.  The amended application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  2 December 2015