AZAFK v Minister for Immigration

[2015] FCCA 1346

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1346

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – whether the put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation:  

Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958 ss.36(2)(a), 36(2)(aa), 424A, 424AA, 476, 477, 499

Applicant: AZAFK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 339 of 2014

Judgment of: Judge Street

Hearing date: 19 May 2015

Date of Last Submission: 19 May 2015

Delivered at: Adelaide

Delivered on: 19 May 2015

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr K. Tredrea

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5800.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 339 of 2014

AZAFK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW 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 in respect of a decision of the Tribunal made on 5 August 2014 affirming a decision not to grant the applicant a Protection (class XA) visa. The application was filed out of time, and an extension of time is required under s.477. The application identifies the following alleged grounds:

   1. That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

   2. More details will be provided by the legal representative.

2. The application clearly fails to articulate any jurisdictional error. No submission was advanced by the applicant seeking to articulate any jurisdictional error. There is no explanation advanced for the failure to seek to invoke this Court’s jurisdiction within the time specified under s.477. In these circumstances on that ground alone I would dismiss the application for leave. It is also apparent that the application fails to identify any jurisdictional error, and that is a further ground on which the application for an extension of time is refused.

3. The applicant applied for a protection visa on 20 November 2012, which the delegate refused on 13 September 2013. The applicant appeared before the Tribunal on 13 June 2014 to give evidence and was assisted by an interpreter and his registered migration agent. The Tribunal properly identified the relevant law and had regard to the ministerial direction number 56 in accordance with s.499 of the Act. The Tribunal carefully set out the applicant’s claims and evidence. Relevantly, the Tribunal did not accept the applicant as a credible witness. The Tribunal found:

   49.    I have considered carefully the applicant’s claims but I do not consider him to be a credible witness in respect of these matters.   I do so for the following reasons.  The applicant’s claims that in 2012 his fisherman friend was detained and murdered by the authorities after being found without his fishing pass and that the authorities confiscated his pass and demanded he attend their base is contrary to independent and authoritative country information from DFAT. 

   …

   51. …I do not accept that the navy officers came to the applicant’s house to ask for him in relation to the pass.  I do not accept that his deceased friend’s wife has disappeared.  I do not accept that he is was or is of any ongoing interest to the authorities as he has claimed.

   2011 extortion claims

   I do not accept that in 2011, the applicant was visited by three men (from the CID and one called [M]) and that they demanded that he pay 20,000 rupees to be paid to them that afternoon at a police station to avoid further trouble.  

   52.    The applicant was able to reside in the village for a significant period without problems thereafter from [M] or anyone else and as found above, I do not accept that the applicant was ever of adverse interest to [M].  Considering the country information set out below concerning the improved situation for Tamils, I find that the chance or risk that the applicant will be seriously harmed or significantly harmed by [M], Sinhalese persons or groups, the authorities or anyone else is remote.

   53. The applicant has been consistent in his account of this incident and I accept that in early 2008 he was stopped by the local police and arrested for not having a national ID card.  I accept that he was punched in the face on the way to the station.  I accept that he was detained overnight and fined 5000 rupees and was required to sign a document in Sinhalese that he could not understand.  Whilst I accept that these incidents occurred and that they constituted serious harm and significant harm, the applicant was released, six years has now passed and he was able to reside in his village without further incident.  Taking into account the country information concerning the improved situation for Tamils after the ending of the war, I find it remote that he will be seriously harmed or significantly harmed because of this incident and because he is a Tamil. 

   2003 encounter with airport authorities

   54. I accept that when the applicant returned from Kuwait in 2003 he was questioned at the airport for two hours and accused of sending money to the LTTE.  However he was released after a rather short period and he had not claimed that anything adverse happened to him in the years that followed.  This questioning is now 11 years ago and I do not accept that he will be perceived of being a LTTE supporter because of this matter.   I do not accept that the authorities have an adverse interest in the applicant or that they now suspect him of having sent money to the LTTE   I therefore find the chance or risk that he will be seriously harmed or significantly harmed due to this questioning and accusations is remote.

   Father and LTTE

   55. The applicant has claimed that his father was involved in the LTTE prior his father leaving the family in 2008 and that his father used to give rice and salt to the LTTE and drive it to them.  The applicant stated that people used to say his father was LTTE and his father would deny it.  I do not accept these claims.  The applicant’s father left his family in 2008 and his family have not heard of him since.  The applicant has not claimed that his father was ever identified or targeted by the authorities despite the claimed activities for the LTTE or that any members of the family (including the applicant) have ever been targeted by the authorities.  In the circumstances, it seems completely speculative that the applicant’s father was involved and the applicant’s evidence was very vague about his father’s involvement and about why people believed that his father was involved.  Furthermore, despite the importance of such a claim in the context of Sri Lanka and the country information concerning the serious situation for those suspected of involvement in the LTTE, the applicant made no mention of this claim in his statutory declaration.  When this was put to him at hearing, agreed that he did not claim this in the statutory declaration.  

   56. Taking into account all these matters, I find that he does not face a real chance of persecution now or in the reasonably foreseeable future from the authorities, paramilitary groups for reasons of any imputed political opinion (pro-LTTE) or membership of a particular social group consisting of his family.

   57. Based on his individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on these bases.

   58. The country information set out above indicates a generally improved situation for Tamils since the ending of the war with the UNHCR stating that there was no longer a presumption of eligibility for Tamils.   DFAT have stated that there are no laws or policies that discriminate against Tamils on the basis of their race, including in relation to access to education, employment and housing and no government sanctioned discrimination in the implementation of laws and policies.  They have also assessed incidents of discrimination or ethnic tension as rare.  I have had regard to country information referred to by the agent concerning the situation for Tamils, including the US State Department Human Rights Report for 2013.  However in making my assessment, I have given substantial weight to the assessment by the UNHCR in its eligibility guidelines as to the circumstances for Tamils as it presents an authoritative and independent overall analysis of the situation for Tamils and the human rights situation in Sri Lanka.  I have also given substantial weight to the information from DFAT because it is recent and they have been specifically charged with the provision of such information to the Australian government.  I accept that some abuses still occur and that some Tamils have suffered harassment and abuses as indicated by the reports referred to by the agent.  I accept that Tamils suspected of certain links to the LTTE are at risk upon to Sri Lanka but the applicant has not claimed that he himself has ever had any personal link to the LTTE or been suspected by the authorities or anyone else and I do not accept that his father or any other family member has been connected to the LTTE.  I do not accept that there is a real chance or real risk that the applicant will be suspected of being linked to the LTTE given the total absence of this occurring in the past and his lack of any actual links. 

   59. When I put the substance of the above country information for the applicant to comment on, he said that there was nobody to highlight problems in [X] due to extortion.  I have considered his response and I accept on the information before me that there is some level of discrimination against Tamils in Sri Lanka and that the applicant was seriously and significantly harmed in 2008 when he was found without his national ID card.   However, I consider this to be an isolated incident that happened a significant number of years ago and prior to the ending of the war and the applicant was able to live in his home area without any further incident.  As indicated in his protection visa application, he has been able to work for many years as a fisherman to support himself and his family.  I do not accept that the applicant is currently of any adverse interest to the authorities or anyone else.

   60. Based on his individual circumstances and the overall weight of the country information, I find that the applicant does not face a real chance of persecution on account of his Tamil race, membership of a particular social group (“young male Tamils”) or his actual or imputed political opinion or any of combination of the above, now or in the reasonably foreseeable future from the authorities, paramilitary groups or anyone else. 

   61. Based on his individual circumstances and the overall weight of the country information, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on these bases.

   Tamil fishermen

   62. There is no recent information before the Tribunal indicating that Tamil fishermen in the Udappu region (the applicant’s home area) are being targeted for harm by the authorities or anyone else.  In November 2012, DFAT advised the Department of Immigration and Citizenship (DIAC) advised that the “Post is not aware of any reports indicating/alleging the Sri Lankan Navy takes a fishermen's catch.  Post spoke to several organisations with grass roots level presence in the relevant area as well as in the north who said they had also not heard of any such complaints from local fishermen.”  They also said that they are “not aware of any reports that Sri Lankan Tamils (or any other ethnic grouping) are mistreated if they are caught illegally fishing”   Another report from April 2013 states that the pass system for fisherman restricting fishing activities was abolished and that the District Fisheries Office now issues identity cards to fisherman freeing them from all restrictions, including fishing hours and nautical distance.

   63. At the hearing in response to this information, the applicant stated that as he had come to Australia illegally and not reported to the camp, he will have problems getting a licence and that when he departed legally he was asked for 20 Lakh because he left the country.  However, I have rejected that he was extorted for his amount for the reasons set out above. While I accept that the applicant experienced a delay in obtaining a fishing licence in 2012, he was able to obtain it after a couple of months and on his oral evidence he and his wife were able to able to obtain passes without problems in 2008 and 2009.  The independent country information indicates that the pass system has been abolished and there is no reason to believe that the applicant will be prevented from obtaining an identity card from the District Fisheries Office which will enable him to resume fishing and to support himself and his family.  I do not accept that being asked by the authorities to produce this card when he is fishing will constitute either serious harm or significant harm. 

   64. At the hearing the applicant claimed that his boat and other equipment have been taken by the army.  However, given that I do not accept that he was the subject of any adverse interest to the authorities from the time of his return to Sri Lanka in 2011, I do not accept that this has occurred.

   65. Given the independent country information and his individual circumstances, I find that the applicant does not face a real chance of persecution (including being targeted for extortion by the authorities, paramilitary groups or anyone else) in the reasonably foreseeable future on account of his membership of a particular social group consisting of “Tamil fishermen”.

   66. Based on the independent country information and his individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on this basis.

   …

   69. Given the independent country information and his individual circumstances, I find that the applicant does not face a real chance of persecution from the village chairman, political opponents or anyone else on account of his actual or imputed political opinion.

   70. Based on the independent country information and his individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on this basis.

   Returnees from overseas and imputed wealth

   71. I accept (as set out in country information contained in the delegate’s decision and the agent’s submission) that there is significant corruption within Sri Lanka.  However, as put to the applicant for comment at the hearing, I have not come across any recent reports of Tamils returning from overseas or from Western countries being targeted by the authorities or anyone else because of their perceived wealth and there is a very large number of Sri Lankans who work abroad.   The applicant said he was telling the truth in response to this, but I have not accepted his claim that he was repeatedly extorted for money because the authorities knew of his work overseas and presumed he was wealthy.  There is no evidence before me that indicates that political opponents target persons because they have travelled overseas.

   72. Given the independent country information and his individual circumstances, I find that the applicant does not face a real chance of persecution from the authorities, political opponents or anyone else in Sri Lanka due to his membership of particular social groups consisting of “Tamils with perceived wealth due to having worked overseas”

   73. Based on the independent country information and his individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on this basis.

   …

   78. I accept that those with an actual or perceived association with the LTTE may face a risk of harm in Sri Lanka and that this also applies to people with such a profile who have returned to Sri Lanka from abroad.  Having regard to all of the information on the treatment of returnees, I am not satisfied that returnees generally are regarded as having links with the LTTE or being opposed to the government simply because they have been in Australia.  I do not accept that returnees generally or returnees who have been in western countries are seen as having links to the LTTE.  I have had regard to the applicant’s claims, but I do not accept that, if he were to return to Sri Lanka, the authorities would regard him as a supporter of the LTTE or someone with links to the LTTE or as someone opposed to the government.

   79. I do not accept that the applicant is of any adverse interest to the Sri Lankan authorities as a suspected LTTE supporter or for any other reason.  I do not accept that the applicant faces a real chance of being imputed with a political opinion as a supporter of the LTTE, now or in the reasonably foreseeable future.  I therefore find, based on the overall weight and authority of the country information and the applicant’s individual circumstances that whilst he may be subjected to questioning upon his return I do not accept that this constitute serious harm or significant harm. 

   80. The applicant does not face a real chance of serious harm, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker whether this is categorised in terms of the Convention grounds of any actual or imputed political opinion or membership of a particular social group (such as failed asylum seekers or Tamil failed asylum seekers or returnees or failed Tamil asylum seekers returning from a Western country). 

   81. Based on his individual circumstances and the independent country information, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm on this basis.

4. The Tribunal addressed the issue of illegal departure and found the Immigrants and Emigrants Act 1949 to be a law of general application and not applied for a Convention reason and not selectively enforced and relevantly found:

   83. I find that the applicant in his particular circumstances only faces a remote chance of ultimately being imprisoned due to his illegal departure.  The evidence does not indicate that the applicant has been involved in facilitating or organising people smuggling and therefore there is no reason to suspect he would accused of this and to thereby face possible long term imprisonment.  He has not claimed to have travelled illegally outside the country in the past which might also attract a more adverse penalty.  There is no independent country information before me that shows that persons in the applicant’s circumstances are being imprisoned.  The DFAT information is that that they are not given a custodial sentence but are only fined as a deterrent.  This information shows that Magistrates are handing out fines of up to 100,000 LKR and prosecutors would only seek a prison sentence and a fine of 200,000 LKR for people smuggling or facilitating it.  My findings are also supported by information from a Sri Lankan lawyer cited above who states that persons in the applicant’s position are likely to face a fine of between 50,000 to 100,000 LKR.  The information from DFAT and the Sri Lankan lawyer is very strong evidence that offenders in the applicant’s circumstances do not face both a fine and imprisonment.

   84. I find that on the applicant’s return to Sri Lanka he faces short term detainment prior to applying for and obtaining bail and a fine as a result of being charged under the I&E Act.  The information from DFAT is that returnees have been granted bail on personal surety immediately by magistrates.  I note the applicant has a number of relatives in Sri Lanka who would be able to come and collect him from court.  I note that IOM is present with the returnee during the process.  I find that the short term detention does not amount to either serious harm in itself and does not amount to persecution for a Convention reason because it is the enforcement of a generally applicable law.  I accept that prison conditions in Sri Lanka are poor but I do not accept that he faces a real chance of persecution for any reason (Convention or non-Convention related) during this short term period of imprisonment. 

   85. I further find that this short term imprisonment or imposition of a fine does not amount to significant harm under s.36(2A) in that it does not constitute the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.  In making these findings, I have considered carefully the country information contained in the agents’ submissions.  I accept that prison conditions in Sri Lanka are poor but the short term nature of the detention means that I find that it would constitute neither serious harm nor significant harm.  I have also considered carefully the country information concern the mistreatment of Tamil political prisoners suspected of involvement with the LTTE.  As earlier found, I do not accept that the applicant is in this position and would be suspected of involvement with the LTTE.  I therefore find that would not face a real chance or real risk of such treatment (or any form of serious harm or significant harm) during his short stay in prison. 

   …

   87. Based on his individual circumstances and the independent country information, I find that the applicant does not face a real chance of persecution on account of his illegal departure in the reasonably foreseeable future from the authorities or anyone else. 

   88. Based on his individual circumstances and the independent country information, I find that there are not substantial grounds for believing that there is a real risk that he will experience the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka during his short term detention or afterwards resulting from the imposition of a fine.

1. It was in those circumstances that the Tribunal addressed the issue of cumulative protection and relevant found:

   88. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any reason (Convention or non-Convention related).  His fear of persecution is not well-founded. 

   89. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm.

2. The Tribunal was not satisfied the applicant was a person to whom Australia had protection obligations for the reasons identified above and was not satisfied that the applicant did not meet the criteria under s.36(2)(a) or 36(2)(aa) of the Act. The adverse findings of the Tribunal were clearly open. There is no jurisdictional error by the Tribunal. The applicant had a genuine hearing, and there is no substance in alleged grounds of the application. The application for an extension of time under s.477 is dismissed. The application is dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 May 2015