Axw15 v Minister for Immigration
[2017] FCCA 158
•1 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXW15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 158 |
| Catchwords: MIGRATION – Review of a decision of the Administrative Appeals Tribunal – application for a Protection (class XA) visa – returned failed asylum seeker – Minister for Immigration and Border Protection v SZQPA [2012] FCA 1025 relied on by the Applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 430, 476(1) |
| Cases cited: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v SZQPA [2012] FCA 1025 |
| Applicant: | AXW15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1257 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 3 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wood |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Mr Hill |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1257 of 2015
| AXW15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By amended application filed 5 July 2016 the Applicant seeks judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 7 May 2015 which affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Protection (Class XA) visa. The Court has jurisdiction pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant seeks an order that the decision of the Tribunal be quashed and that writs issue. The Respondent seeks that the application be dismissed. Both parties seek costs if successful.
The application sets out two grounds of review wherein it is said the Tribunal constructively failed to exercise its jurisdiction. Ground one is not pressed by the Applicant. The Applicant proceeds with only ground two. That is as follows:-
“2. The Tribunal constructively failed to exercise its jurisdiction, by reason that the Tribunal failed lawfully to consider a claim made by the Applicant to satisfy the criteria for a protection visa under section 36 of the Migration Act 1958 (The Act).
Particulars
a. Another one of the bases upon which the applicant claimed to satisfy the criteria for a protection visa was that, as a failed asylum seeker, he would be detained on his return to Sri Lanka, and he would suffer serious or significant harm in detention (even if the Sri Lankan authorities ultimately concluded that he was not a person of interest).
b. In particular, the applicant’s agent cited a passage from SZQPA v Minister for Immigration [2012] FCA 1205, where Gilmour J approved of the following proposition: “[T]he Reviewer’s reasons only related to the general process of interviewing returning asylum seekers and stated that those suspected of having involvement with the LTTE would be taken away for further questioning… The applicant might well be able to persuade the authorities that he did not represent a risk, but the Reviewer needed to consider what might happen prior to that point being reached”.
c. Accordingly, the applicant’s agent submitted that “whether or not the Sri Lankan authorities deem the Applicant to have a pro-LTTE profile, it is necessary to consider the mistreatment he would face during interrogation in determining any potential LTTE associations”. And the agent submitted that “there is a vast amount of country information which supports the notion that failed asylum seekers are mistreated at the hands of the authorities upon return to Sri Lanka”.
d. The Tribunal failed to consider this claim.
e. The Tribunal accepted that the applicant “may be identified as a person who has unsuccessfully sought asylum in Australia”, and that “he will not return to Sri Lanka voluntarily”. And the Tribunal accepted that “upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad and that give [sic] he is a Tamil speaker, he may also face questioning about any links he may have with the LTTE”.
f. The Tribunal did not accept that, following this interrogation, there was “a real chance that [the Applicant] will be imputed with a political opinion that is supportive of the LTTE” or that he will be “targeted for harm” on this basis.
g. However, the Tribunal did not consider the applicant’s claim that he would be mistreated during the process of interrogation, before the Sri Lankan authorities concluded that he was not a person of interest.”
There is no issue between the parties as to the fact that the claim, that the Applicant would be subjected to harm during questioning on his return to Sri Lanka even if the Sri Lankan authorities might ultimately conclude that he was not a ‘person of interest’, was articulated by the Applicant in the Tribunal proceedings.
Background
The Applicant is a Tamil from Sri Lanka. He arrived in Australia by boat on 11 August 2012.
On 11 December 2012, the Applicant’s representative lodged an application for a protection visa. The Applicant’s claims are set out in a statement dated 11 December 2012. He claimed to fear persecution on the basis of his race as a Tamil; and on the basis of his (imputed) political opinion.
On 11 December 2013, a delegate of the Minister refused to grant the Applicant a protection visa. On 6 January 2014, the Applicant applied to the then Refugee Review Tribunal for review of the delegate’s decision.
The Applicant’s representatives provided submissions to the Tribunal on 13 March 2015. These submissions identified four issues as set out by the Respondent in submissions:-
a)persecution based on the Applicant’s Tamil ethnicity;
b)persecution based on real/imputed political opinion (although the submissions acknowledged that the Applicant did not meet the risk profiles identified by the United Nations High Commissioner);
c)persecution based on membership of a particular social group of failed Tamil asylum seekers, contending (among other things) that the Applicant would be subjected to serious harm while being questioned on his return by Sri Lankan authorities; and
d)complementary protection.
The Tribunal held a hearing on 21 April 2015. The Applicant gave evidence with the assistance of an interpreter. The Tribunal affirmed the decision of the delegate.
Tribunal Findings
The Tribunal commenced its Statement of Decision and Reasons (‘the Decision Record’) noting the issues for the Tribunal were whether the Applicant had a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.
The Tribunal accepted that the Applicant departed Sri Lanka for Malaysia in September 2011 on his own genuinely issued passport having applied for and obtained a tourist visa to enter Malaysia. The Tribunal accepted that he registered with the UNHCR in Malaysia and attended an initial interview but left that country for Indonesia before the UNHCR determined his claims for protection. It was from Indonesia that he departed for Australia.
The Tribunal accepted that the Applicant was detained in Colombo in about August 2007 and questioned about his connections to the Liberation Tigers of Tamil Eelam (‘the LTTE’) for about 15 to 20 minutes. This arose because his identity card noted he was originally from Batticoloa, which is in the north in the Eastern Province and where the LTTE had a stronghold in the years prior to 2009. The Applicant was thereafter held in a room with other detainees for about 10 hours before he and the other detainees were released after the intervention of a Tamil member of the United National Party, X. The Applicant did not know what X did or said and he never met him again. X was assassinated in Colombo in January 2008.
The Tribunal accepted the Applicant was again detained by the Sri Lankan police in November 2007 for about three days. He was fingerprinted, stripped and checked for wounds that might have indicated he had been involved in the conflict and was told that his information would be sent to Batticoloa for checking and that he would not be released until the results of the police checks were known. He was then released without charge.
The Tribunal accepted the Applicant’s claim that he helped carry X’s coffin for a time during the funeral service (as did many others) in early 2008 but did not accept the Applicant’s other claims to have received multiple anonymous phone calls in 2009 and/or 2010 or to have been visited by unidentified men in January 2011 as a result of his participation in the funeral.
The Tribunal did not accept there to be a real chance that the Applicant would be imputed to have a personal relationship with X or that he would otherwise be targeted for harm by the Sri Lankan authorities or any other person or group for any reason relating to his role in the funeral of X in January 2008, if he returned to Sri Lanka now or in the foreseeable future.
On the evidence before it the Tribunal did not accept that the Applicant’s cousin was the secretary of the Pillayan Group, Thamil Makkal Viduthalai Pulikal (formerly known as the Karuna group) (‘TMVP’) nor that he or any other member of the TMVP had been making enquiries about the Applicant at his home in Colombo. Further the Tribunal did not accept nor that TMVP had written to the Applicant accusing him of working against them and demanding he attend a meeting with that organisation in Batticoloa. The Tribunal did not accept there to be a real chance that the Applicant would be targeted for harm by his cousin or other members of the TMVP if he returned to Sri Lanka, now or in the foreseeable future.
In respect of the Applicant’s Tamil ethnicity the Tribunal said at paragraphs 22 and 23 of its Decision Record:-
“22. At hearing the Tribunal drew the applicant’s attention to independent sources indicating that it would no longer be assumed that all Tamils in northern Sri Lanka were connected with the LTTE, nor that Tamils face a real chance of suffering serious or significant harm solely on account of their Tamil ethnicity.[1] The applicant stated that the UK Prime Minister had confirmed that there were still serious problems in Sri Lanka and [sic] was not allowed to freely visit all parts of the Northern region. He stated that the information obtained by the Australian government went through the Sri Lankan government who gathered local Tamils to appear in front of foreign delegates to say that there is no problem. He stated that the current President’s brother was killed in an axe attack and there are lots of robberies and shootings in the country and drug dealing in his area. The Tribunal accepts that violent crime and generalised violence occurs in Sri Lanka but the Convention definition of ‘refugee’ does not generally encompass those fleeing generalised violence.[2] Nor does the information before the Tribunal indicate that crime or generalised violence is so prevalent in Colombo such as would create a real chance that the applicant may be caught up in such events.
23. The Tribunal noted that the independent sources indicated that the absence of any anti-government activity before or after leaving Sri Lanka will mean that any enquiries made by the Sri Lankan authorities upon a person’s return is not likely to result in a concern that person will be a security risk.[3] The Tribunal drew the applicant’s attention to the UK Home Office’s assessment that since the end of the war in 2009, the focus of the Sri Lankan government’s concern has changed and they are now interested in are those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they are perceived to have a significant role in relation to post-war separatism and a renewal of hostilities within Sri Lanka.[4]”
[1] Department of Foreign Affairs and Trade 2014 DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam 3 October; Department of Foreign Affairs and Trade 2015 DFAT Country Report 16 February; UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August; UNHCR 2012 Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka 21 December.
[2] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [141] per Gummow J, Gleeson CJ and Hayne J agreeing.
[3] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August.
[4] UK Home Office Operation 2014 Country Information and Guidance Report about Tamil Separatism in Sri Lanka dated 28 August at 1.3.5-7.
The Tribunal found that Tamils, including young male Tamils living in or originating from northern Sri Lanka, do not face a real chance of suffering serious harm solely on account of their ethnicity. The Tribunal states that it gave weight to the UNHCR’s 2010 assessment that there was no longer a need for group based protection mechanisms for Tamils from the north of the country. The Tribunal noted that the UNHCR’s 2012 guidelines confirmed that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international protection.[5] This was consistent with DFAT’s advice that Tamil civilians who were not members of the LTTE, including those that may have provided low level support to the LTTE, are now at a low risk of being detained or prosecuted in Sri Lanka.[6] Similarly the Tribunal noted the UK Home Office assessed in 2014 that being of Tamil ethnicity does not on its own warrant international protection.[7]
[5] UNHCR UNHCR Eligibility Guidelines for Assessing the Protection Needs of Asylum Seekers from Sri Lanka 21 December 2012.
[6] Department of Foreign Affairs and Trade 2015 Country Information Report for Sri Lanka 16 February; Department of Foreign Affairs and Trade 2014 People with Links to the LTTE 3 October.
[7] UK Home Office Operation 2014 Country Information and Guidance Report about Tamil Separatism in Sri Lanka dated 28 August at 1.3.5.
The Tribunal noted the Applicant gave evidence that he had never been involved with the LTTE and fled Batticoloa to avoid them. It was not suggested that the Applicant had otherwise been involved in Tamil separatist activities while in Sri Lanka or since departing Sri Lanka and the Tribunal found he had not.
The Tribunal accepted that the Applicant may also be identified as a failed asylum seeker returning from Australia but did not accept there to be a real chance that he would be imputed with a political opinion that was supportive of the LTTE because of his previous detentions or his status as a failed asylum seeker returning from Australia.
Failed Asylum Seeker
The Tribunal accepted that the Applicant may be identified as a person who has unsuccessfully sought asylum in Australia if he is returned to Sri Lanka and the Tribunal also accepted that the Applicant would not return to Sri Lanka voluntarily.
The Tribunal said of particular relevance to the ground relied upon by the Applicant, at paragraphs 32 to 37 of its Decision Record:-
“32. At hearing the Tribunal discussed with the applicant DFAT’s advice that significant numbers of Sri Lankan Tamils have been returned involuntarily to Sri Lanka from Australia and other countries and that the independent sources didn’t indicate that a returnee identified as someone who had sought asylum in Australia or another western country would face a real chance of serious or significant harm on that basis alone. The applicant told the Tribunal that those people probably didn’t have any problems but that his case was different and he didn’t want to return to Sri Lanka.
33. It is submitted on behalf of the Applicant that Sri Lankans who apply for asylum abroad may upon their return be imputed with dissident or other pro-LTTE views by reason of their attempts to gain protection in other nations and that other sources raise doubts about the accuracy of DFAT’s report on failed asylum seekers. In that regard the Tribunal has been referred in particular to reports by the Immigration and Refugee Board of Canada (IRB) and the Bar Human Rights Committee of England and Wales and the International Truth and Justice Project’s Report, ‘An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009 – 2014’ as well as other courses cited in those submissions.
34. The Tribunal accepts that there is no systematic monitoring of the treatment of Sri Lankan returnees and that there are reports that some former Sri Lankan asylum seekers have allegedly been detained and ill-treated after returning to Sri Lanka, voluntarily or otherwise. The 2013 IRB report contains a number of such reports and notes that several sources report on allegations of torture of Tamil returnees to Sri Lanka by state authorities. The March 2014 Bar Human Rights Committee of England and Wales report suggests that some witnesses whose previous asylum applications were unsuccessful reported being abducted by security forces upon their return to Sri Lanka. Some of the reports of ill treatment of returnees provide no details of the profiles of persons who are said to have been mistreated upon return other than to identify them as failed asylum seekers, while other reports refer to their activities with the LTTE in Sri Lanka or abroad. As put to the applicant at hearing, DFAT assesses that returnees to Sri Lanka are treated in the same way regardless of their race other [sic] religion and that they are not subject to mistreatment during their processing at the airport.
35. As discussed with the applicant at hearing, the UK Home Officer reports that Sri Lanka has an extensive intelligence system shared by the security forces and immigration officials and that its security policy has become increasingly sophisticated since 2009 and is based on intelligence and the comprehensive surveillance of its Tamil citizens as well as monitoring of the Tamil diaspora.[8] That Guidance notes that the absence of any anti-government activity pre and post flight from Sri Lanka will mean that any enquiry made by the Sri Lankan authorities on a person’s return is not reasonably likely to crystallise into concern about the person being a security risk.[9]
36. The Tribunal accepts that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he has been abroad and that given that he is a Tamil speaker, he may also face questioning about any links he may have with the LTTE. However the Tribunal considers that such questioning, in conjunction with intelligence, will quickly establish that while the applicant has been detained on two occasions in 2007, he was on each occasion released after checks were conducted indicating that he was of no adverse interest to the Sri Lankan authorities in Batticoloa or Colombo. The Tribunal accepts that the applicant may be identified as a failed asylum seeker returning from Australia but does not accept there to be a real chance that he will be imputed with a political opinion that is supportive of the LTTE because of his previous detentions or his status as a failed asylum seeker returning from Australia.
37. As noted above, it is not suggested that the applicant has engaged in political or separatist activities of any kind since his departure from Sri Lanka nor that he will do so if he returns to Sri Lanka in the foreseeable future. For these reasons the Tribunal does not accept there to be a real chance that the applicant will be targeted for harm at the airport on the basis that he is returning as a failed asylum seeker who is Tamil, now or in the reasonably foreseeable future.”
[8] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 2.2.
[9] UK Home Office Operation 2014 Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August at 1.3.5.
And later relevantly at paragraph 47 “…the Tribunal does not accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A) during his questioning at the airport.”
The Tribunal was thus not satisfied that the Applicant met the refugee criterion under s.36(2)(a) of the Act and nor did he satisfy the complimentary protection criterion under s.36(2)(aa) of the Act.
Consideration
The Tribunal is required to consider the Applicant’s claims. As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]:-
“To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs vPeko Wallsend[1986] HCA 40; (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30;(2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs[1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.”
Further as held in SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 by Perry J at [17] and [18]:-
“… the requirement to consider a claim or integers of a claim made by an applicant requires the application of an active intellectual process. As the Full Court held in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS) at 559 [38], “[t]hat task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant...”.
18. … as the Court below held at [48]-[49], in forming an opinion as to whether there is a real chance of persecution for a Convention reason, past events may assist in assessing what is likely to occur in the future. As the joint judgment held in Guo at 574, “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.” Thus, in the context of applying the definition of a refugee in the Convention, the joint judgment held at 575:
‘Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.’”
The Applicant claimed to fear harm by reason of his status as a Tamil failed asylum seeker who had spent significant time in Australia. The Applicant argues the Tribunal failed to consider, having regard to all the country information including that submitted by the Applicant, the mistreatment he might face at the hands of the authorities in Sri Lanka during interrogation in determining any potential LTTE association. Part of that failure to consider the Applicant’s claim it is argued, is the Tribunal’s failure to weigh and assess critical information placed before it by the Applicant being the country information provided by the Applicant.
The Applicant further argues that while the weight to be given to different items of country information is of course a matter for the Tribunal, where (as here) there is country information pointing in different directions, the Tribunal must weigh the information and decide what it finds more persuasive. Given that the Tribunal is required by s.430 of the Act to provide reasons for its decision, where its reasons “disclose no process of weighing evidence and preferring some over the other”[10], the Court may infer that the Tribunal did not engage in that weighing process.[11]
[10] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [50].
[11] See for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [35] (Gleeson CJ), [69] (McHugh, Gummow and Hayne JJ).
This argument cannot be upheld. The Tribunal referred specifically to the report by the Canadian Immigration and Refugee Board (cited by the Applicant’s representatives in the relevant part of the pre-hearing submissions), and other reports cited by the Applicant’s representatives. The Tribunal in essence identified the material country information relied on by the Applicant. The Tribunal also referred to reports from DFAT. The Tribunal also referred to a report from the UK Home Office. It is clear on a fair reading of the Tribunal’s reasons that the Tribunal accepted the country information in the DFAT reports, and the report from the UK Home Office. It is also clear on a fair reading of the Tribunal’s reasons that the Tribunal preferred the DFAT advice and the UK Home Office report over the reports referred to by the Applicant. The Court concludes the Tribunal did not fail to consider that critical evidence put before it by the Applicant, which included country information, and proceed to weigh it as against other evidence before the Tribunal.
The Tribunal not only considered the material and evidence supporting the Applicant’s claim but explained why it preferred the country information from DFAT and the UK Home Office as set out in the extract from the Decision Record contained in paragraph 22 of these reasons.
The Applicant is not assisted by the decision in Minister for Immigration and Citizenship v SZQPA.[12] In that case the relevant factual context was different, namely that the Applicant there, on return to Sri Lanka wold be a person suspected of having links to the LTTE. In these proceedings the Applicant would not be so suspected. This Court has consistently held that SZQPA is not applicable when an applicant does not have any perceived affiliations with the LTTE.[13]
[12] [2012] FCA 1025.
[13] See MZYVX v Minister for Immigration [2012] FMCA 656 at [15]-[19]; MZZAL v Minister for Immigration [2013] FCCA 392 at [49]; SZTCH v Minister for Immigration [2013] FCCA 1895 at [14] (appeal dismissed: [2014] FCA 536); SZSAB v Minister for Immigration [2013] FCCA 2205 at [29]; SZTPG v Minister for Immigration [2015] FCCA 918 at [30]-[33]; SZWBV v Minister for Immigration [2015] FCCA 1543 at [25]-[27]; see also WZAQR v Minister for Immigration [2013] FCCA 418 at [82].
The application will be dismissed and costs shall follow.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 1 February 2017
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