BAG15 v Minister for Immigration

[2016] FCCA 2265

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAG15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2265

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal was obliged to give applicant further opportunity after the hearing to comment on negative matters before the Tribunal made its decisions – whether Tribunal addressed all major issues – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A

Cases cited:

SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152

Applicant: BAG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1602 of 2015

Judgment of: Judge Manousaridis

Hearing date: 26 August 2016

Delivered at: Sydney

Delivered on: 2 September 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1602 of 2015

BAG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Sri Lanka, a Tamil, and a Muslim, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. The applicant arrived in Australia in June 2012 as an irregular maritime arrival. The applicant stated his claims for protection on three occasions: first, as recorded in a BIODATA form completed by an officer of the Department of Immigration and Citizenship (Department) on 15 August 2012; second, at an Irregular Maritime Arrival Entry Interview conducted by an officer of the Department on 23 August 2012 (IMAEI); and third, in a written statement that formed part of his application for a Protection visa lodged on 13 December 2012.  

2. According to the applicant’s written statement, in May 2009 a bus from a school in the applicant’s village collided with a train, killing fifteen people. The applicant, together with other people, was responsible for taking the causalities from the crash site to the hospital. According to Muslim traditions, the casualties had to be buried within 24 hours of death. When the applicant arrived at the hospital, however, an issue arose. Mr B, the opposition leader, and a member of the Sri Lankan Muslim Congress (SLMC), arranged to permit the bodies to be returned for burial by 5.00 pm on the same day. After Mr B left, Mr A, who was a Minister and a member of the Sri Lanka Freedom Party, arrived. After Mr A spoke with hospital officials, it was announced that the bodies would be kept for post-mortem procedures. The families of the deceased were outraged when they heard the bodies would not be released as promised, and they protested against the violation to their religious customs. Mr A’s supporters were also present in the crowd, and a bitter argument erupted between them and the villagers.

3. The applicant and his group re ceived the bodies at around midnight, and brought them to the mosque to undergo their burial rites. Mr A was told to stay away, as he would “only make things worse”. Despite the warning, Mr A attended, together with armed police, soldiers, security, and a camera crew. Violence erupted in which Mr A was attacked. The camera crew filmed the attack, and the resulting video footage contained images of the applicant and a group of twenty-five people.

4. The day after this incident, the police began searching for the important SLMC members shown in the video. In addition, members of a group supported by Mr A, known as New Start, attacked people. Members of New Start broke the legs of an auto-rickshaw driver, and they threw a grenade in a house to flush out a person in hiding. Later that day a friend of the applicant’s told him that he had been told by Muslim members of the police that Singhalese officers had been asking for the applicant’s address on the instructions of Mr A. Another of the applicant’s friends confirmed this information. When he heard the news, the applicant and about twenty of the most committed supporters ran away from their homes. The applicant and two others fled Colombo.

5. During the time the applicant was in hiding, there was an election in which Mr A lost to Mr B. Mr A became even more infuriated and started searching “even more heavily” for the SLMC supporters he considered to be his enemies. As a result, “many of us fled overseas, for example to Saudi or Qatar”.

6. In January 2010 the applicant returned to his village, where he would only spend two days of every week for fear of being targeted by New Start members. The applicant continued to move around until he left for Australia in 2012.

7. The applicant claimed he could never return home, because he will be kidnapped and interrogated. Further restrictions have been placed on the Muslim population; prayers can no longer be conducted openly; halal meat has been banned; and limitations have been placed on Muslim businesses, because the government is trying to supress minorities.

Tribunal’s decision

1. The Tribunal did not accept the applicant’s claims to be true, or that the applicant had given truthful evidence, or that the applicant has any fear of harm if he returns to Sri Lanka, or that the applicant experienced harm in Sri Lanka before he came to Australia. The Tribunal relied on a number of matters.[1]

   [1] CB143, [27]-[31]

2. First, the Tribunal found the applicant’s account of his behaviour from early 2009, when he claimed to have gone into hiding, “was not convincing, did not bear the ring of truth and was not believable”.[2] The Tribunal’s conclusion was based on the evidence the applicant gave before the Tribunal that he spent the majority of his time in Kalmunai, where he earned a living from fishing, and that he had engaged in political activities for the SLMC. This indicated to the Tribunal that the applicant appeared to be acting as if he were not in hiding.[3]

   [2] CB140, [17]

   [3] CB139, [14]

3. Second, the Tribunal found the applicant gave evidence to the Tribunal about his movements in 2009 that were inconsistent with what he said in his written statement and what he told the delegate. Before the Tribunal, the applicant said that after he fled his village in early 2009, he travelled to Colombo where he stayed in the home of an aunt for a few days before travelling to Kalmunai, never to return to Colombo again. The applicant also claimed that he returned to his village many times during this period. In his written statement, on the other hand, the applicant said he fled to Colombo in early 2009 and stayed there for about six or seven months.[4]

   [4] CB140-141, [18]-[20]

4. Third, the Tribunal referred to country information, which it accepted, that showed Mr A was an advocate for the rights of Muslims. It seemed incongruous to the Tribunal that Mr A would act in violation of his own religion, as the applicant claimed Mr A had acted.[5]

   [5] CB142, [22]

5. Fourth, the Tribunal found the applicant made inconsistent statements about Islam’s attitude to post-mortem examinations. In his written statement, the applicant only referred to the necessity of having to bury the dead within 24 hours, whereas before the Tribunal the applicant said that carrying out a post-mortem examination violated his religion.[6]

   [6] CB142, [23]-[26]

6. The Tribunal also had regard to Country Information, including the UNHCR “Eligibility guidelines for assessing the international protection needs to asylum seekers from Sri Lanka” and “DFAT Country Report Sri Lanka” dated 16 February 2015. The Tribunal reached the following conclusions based on that information:

   a)      While human rights abuses continue to take place in Sri Lanka, those at greatest risk are people likely to be perceived as opponents of the government, including those with links to the The Liberation Tigers of Tamil Eelam arising from actual involvement or the involvement of a close family member. The Tribunal concluded that being a Tamil from a certain part of Sri Lanka does not per se place the applicant within the profiles or risk categories identified, or lead to a real chance he will suffer serious harm on his return to Sri Lanka.[7]

   b)      While failed Tamil asylum seekers will be held in the custody of Sri Lankan authorities on their arrival at the airport, the Tribunal found such persons would not be subjected to mistreatment. The Tribunal accepted that while returnees may spend time in prison while waiting to be brought before a magistrate, such detention would be subject to the non-discriminatory enforcement of a law of general application. The Tribunal concluded that the risk of a Tamil returnee suffering serious harm in the process of re-entering the country and being brought before a court is remote.[8]

   c)      The Tribunal had regard to Sri Lankan law that provides a custodial sentence for individuals who leave the country illegally. The Tribunal considered the risk of this occurring to the applicant to be remote.[9]

   d)      While the Tribunal accepted there have been attacks in Sri Lanka against Muslims, their places of business and mosques, such instances are low in comparison to the Muslim population, and the risk of a Muslim suffering serious harm on the ground of religion is remote.[10]

   [7] CB146, [39]

   [8] CB147, [40]

   [9] CB147, [41]

   [10] CB147, [42]

7. The Tribunal concluded the applicant was not a person in respect of whom Australia had protection obligations pursuant to section s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). 

Grounds of application

1. The applicant’s application for review raises one ground:

   I had a legitimate expectation that the RRT would contact me for a second hearing and/or that the RRT would invite me for comments if they found any negative information in respect of my RRT review after hearing.

   Particulars

   The RRT did not give an opportunity after the hearing, before this decision was taken, to respond to negative information by was of a further hearing or respond to me in writing their intention to use this information to refuse my application. The RRT decision indicates that there are major issues which RRT did not consider.

   I will provide the further particulars of the ground, after I have listened to the RRT hearing recording.

2. In my presence, and at my request, the interpreter translated this ground to the applicant, who is not legally represented. I then asked the applicant whether he was able to identify the “negative information” to which the Tribunal failed to give the applicant an opportunity to respond. The applicant said he was unable to do so without his going through his case. I also asked the applicant whether he was in a position to tell me of the “major issues which the RRT did not consider”. In response to that question, the applicant said that Sri Lanka is really a very small island, and that at the hearing before the Tribunal, the applicant said he was displaced 65 kilometres from his home. The applicant said the Tribunal “misunderstood in comparing Australia with Sri Lanka, so there was a bit of confusion there”. In response to my question “what was the confusion?”, the applicant said that the Tribunal said that “if you have displaced by 65 kilometres, the authorities would have been able to find you and  they didn’t believe that and they were confusing me”. I asked the applicant why he disagreed with the Tribunal, to which the applicant answered: “I was confused because the questions they asked were not chronological. It goes here and there, so I was very confused”.

3. I am unable to link with the Tribunal’s reasons for decision what the applicant said to me about his having been displaced 65 kilometres from his home, and the Sri Lankan authorities being able to find the applicant. As I have already noted, the Tribunal did refer extensively to the evidence of the applicant’s movements in 2009, finding that, on his evidence, the applicant’s movements were inconsistent with his claim that he was in hiding, and also finding that the applicant had given inconsistent evidence about his movements. I can see nothing in the Tribunal’s reasons that refer to the applicant’s having moved 65 kilometres from his home, or which refer to the Tribunal’s relying or not relying on the applicant’s being able to be located by authorities because of the distance the applicant claimed he had travelled from his home. Nor can I see anything in the Tribunal’s reasons that suggests anything turned on the applicant’s having travelled any distance from his home. This part of the applicant’s submissions, therefore, suggests no jurisdictional error, or arguable jurisdictional error, by the Tribunal.

4. As for the applicant’s claim that he was confused, the claim is of such generality, and is so divorced from the matters that were considered by the Tribunal, that it is not possible for me to give the claim any consideration. The only matter to which the applicant’s claim of confusion could relate is what the applicant said about the 65 kilometre distance he claimed he travelled from his home. As I have already noted, however, there is nothing in the material before me to indicate the applicant mentioned this distance to the Tribunal, or that anything in the Tribunal’s decision turned on the distance the applicant travelled from his home.

5. This, then, leaves me to consider the ground stated in the application. It does not disclose any jurisdictional error. The ground assumes the Tribunal was obliged to inform the applicant of all negative matters on which the Tribunal in fact relied, and provide the applicant an opportunity to make submissions on those matters. The Tribunal is under no such obligation. In the circumstances identified in s.424A of the Act, the Tribunal is obliged to give particulars of information on which the Tribunal relies. The ground, however, does not identify the information of which it could be said the Tribunal was obliged to give the applicant particulars. In any event, there is nothing in the material before me that could reasonably suggest the Tribunal failed to comply with s.424A of the Act.

6. The Tribunal is also obliged to give an applicant notice of issues that were not treated as dispositive by the delegate.[11] The Tribunal’s reasons indicate the Tribunal was aware of its obligations in that regard. That is indicated by the following passage from the Tribunal’s reasons for decision:[12]

   At the beginning of the hearing the Tribunal advised the applicant that although the delegate may have accepted certain aspects of his evidence as being credible, the Tribunal would have to make up its own mind as to whether or not he was telling the truth and that was a purpose of the questions it would be asking him.

   [11] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152

   [12] CB143, [27]

7. The Tribunal, therefore, appears to have put the applicant on notice that everything the applicant said or would say in support of his application was in issue.[13] In any event, and as I have already noted, the only issue the applicant appears to have submitted the Tribunal did not consider was the 65 kilometre distance the applicant claimed he had travelled from his home. As I also have already noted, however, there is nothing in the Tribunal’s reasons for decision that indicates anything turned on the distance the applicant claimed he had travelled from his home.

   [13] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 at [47]

8. The ground stated in the application, therefore, fails.

Disposition

1. I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as second respondent.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 2 September 2016