BAH16 v Minister for Immigration and Border Protection
[2019] FCA 893
•14 June 2019
FEDERAL COURT OF AUSTRALIA
BAH16 v Minister for Immigration and Border Protection [2019] FCA 893
Appeal from: BAH16 v Minister for Immigration & Anor [2018] FCCA 3700 File number(s): VID 10 of 2019 Judge(s): ANDERSON J Date of judgment: 14 June 2019 Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court of Australia (Circuit Court) dismissing application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) not to grant protection visa – whether Tribunal failed to assess claim on the basis of his religion – whether Tribunal assessed the appellant’s claims cumulatively – whether DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 (DAO16) is distinguishable from this case
Held: appeal dismissed – no jurisdictional error by Tribunal – the appellant raised a claim on the basis of his ethnicity, but not religion – the Tribunal correctly assessed the appellant’s claims cumulatively – DAO16 is distinguishable
Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 420, 422B Cases cited: BAH16 v Minister for Immigration & Anor [2018] FCCA 3700
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Date of hearing: 30 May 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 41 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Appellant: Ms M Gangemi of the Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to
costs
Table of Corrections 2 December 2019 In paragraph 39, the references to “DOA16” have been replaced with “DAO16”. ORDERS
VID 10 of 2019 BETWEEN: BAH16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ANDERSON J
DATE OF ORDER:
14 JUNE 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs of and incidental to the appeal, fixed in the lump sum of $3,800.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J:
Introduction and summary
The appellant appeals from the decision of the Federal Circuit Court of Australia (Circuit Court) to dismiss the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister (delegate) not to grant the appellant a protection visa (Visa).
For the reasons below, the reasons of the Tribunal do not disclose any jurisdictional error on its part. Neither to the reasons of the Circuit Court otherwise disclose any appealable error. The appeal to this Court is accordingly dismissed.
Background
The appellant is a 26 year old national of Sri Lanka who arrived in Australia as an irregular maritime arrival on 16 July 2012.
On 12 November 2012, the appellant applied for the Visa. The appellant claimed to fear harm on the basis of his political activities in Sri Lanka as a supporter of the Tamil National Alliance (TNA) and threats he received to join the Tamil Makkal Viduthalai Pulikai (TMVP). According to the appellant, his family also received threats from unknown people when they called his family home and asked the appellant’s mother for money. The appellant also claimed to fear harm from Muslims, as a Tamil and/or perceived Liberation Tigers of Tamil Eelam (LTTE) supporter, as a failed asylum seeker, a returnee from a Western country and due to his illegal departure from Sri Lanka.
On 6 December 2013, the delegate refused the appellant’s application for a Visa.
On 12 December 2013, the appellant applied to the Refugee Review Tribunal (as the Tribunal was then known) for a merits review of the delegate’s decision. On 22 October 2015, the appellant appeared before the Tribunal to give evidence and present arguments. He was assisted by a Tamil interpreter and was represented by a registered migration agent.
The Tribunal’s decision
On 29 March 2016, the Tribunal affirmed the decision of the delegate not to grant the Visa.
In its reasons (AAT Reasons), the Tribunal found that the appellant’s key factual claims were not credible. The Tribunal found that much of the appellant’s evidence in relation to his alleged political involvement was “generalised, vague and inconsistent”: AAT Reasons at [57]. In particular, the Tribunal found that:
(1)the appellant’s evidence about his claims of being forced to put up posters for the TMVP was vague and confused. The evidence lacked detail about where this occurred, and whether he was alone or accompanied at the time: AAT Reasons at [61];
(2)the appellant’s evidence about his involvement with a TNA campaign also lacked detail as the appellant was unable to describe anything he did for the campaign apart from putting up posters and being “with him” (being a TNA Member of Parliament): AAT Reasons at [62]; and
(3)the appellant’s evidence about being threatened and approached by the Criminal Investigation Department (CID) lacked credibility, especially because the appellant was unable to explain why the CID would be interested in threatening him given his young age and low level of involvement with the TMVP: AAT reasons at [66].
The Tribunal gave little weight to the letters of support provided by the appellant as the claims in the letters were inconsistent with the appellant’s own evidence about his political involvement: AAT Reasons at [63]-[64].
The Tribunal did not accept that the appellant had ever been involved in any election campaigning or other political activities in the past, either for the TNA or TMVP: AAT Reasons at [72]. The Tribunal also did not accept that the appellant had faced extortion in the past: AAT Reasons at [73].
The Tribunal found the appellant’s evidence regarding threats he faced from Muslims to be vague and generalised and did not accept that the appellant faces a risk of serious or significant harm from Muslims in surrounding villages: AAT Reasons at [74].
In relation to the appellant’s claim that he would face future harm as a Tamil or perceived LTTE supporter if he returned to Sri Lanka, the Tribunal referred to country information and did not accept that the appellant faced a real chance of this harm occurring: AAT Reasons at [75]-[80].
As a failed asylum seeker, the Tribunal accepted that the appellant would be subject to standard questioning and security checks upon his return to Sri Lanka, but that this did not amount to serious or significant harm: AAT Reasons at [81]-[86]. The Tribunal found that, due to the appellant’s illegal departure, he will be held in remand for a short period if he is charged with an offence but will be granted bail and, if required, his parents or siblings would be able to act as guarantors: AAT Reasons at [87]-[91]. Further, the Tribunal found that the appellant would be fined but would be able to pay the fine if he was convicted: AAT Reasons at [92]-[94].
Having considered the appellant’s claims separately and cumulatively, the Tribunal did not accept that the appellant faced a real chance of serious harm from the TMVP, other armed groups, Sri Lankan authorities or anyone else due to his Tamil ethnicity or for any other reason: AAT Reasons at [99]. The Tribunal was not satisfied that the appellant has a well-founded fear of persecution or that there is a real risk the appellant will face significant harm should he be removed from Australia: AAT Reasons at [99]-[100]. The Tribunal therefore found that the appellant did not satisfy the criteria in either ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Act) and affirmed the decision of the delegate under review: AAT Reasons at [101]-[104].
The Federal Circuit Court’s decision
On 2 May 2016, the appellant applied to the Circuit Court for judicial review of the Tribunal’s decision not to grant him a Visa. His application contained the following six grounds of review:
(1)The Tribunal has not assessed the applicant’s claims cumulatively being a Young Tamil of Hindu faith from the East of Sri Lanka with a perceived association and political opinion of the political party TNA;
(2)The Tribunal has not assessed the applicant’s integer claim of being a Hindu by faith;
(3)The Tribunal misconstrued the threat to the applicant by the CID without realising the applicant was not privy to the motive of the CID towards him and applied the wrong test in rejecting this piece of evidence;
(4)The Tribunal’s finding that the TMVP or an unknown group would not have had [sic] made phone calls demanding money and threatened the applicant with death was not supported by evidence;
(5)The Tribunal breached s 420 of the Act in its conduct of operation when it rejected the applicant’s involvement in the campaign of TNA; and
(6)The Tribunal breached s 422B of the Act by not affording natural justice to the applicant and thereby fell in to jurisdictional error.
The Circuit Court dealt with grounds 1 and 2 together. The Circuit Court found that, whilst it was clear that the appellant claimed to be a Hindu (and he was accepted to be by the Tribunal), he had not raised a claim to fear harm on the basis of his Hindu religion: BAH16 v Minister for Immigration & Anor [2018] FCCA 3700 (FCCA Reasons) at [37]-[38]. The Circuit Court further found that, whilst the appellant had expressed a claim to fear harm from residents in a neighbouring Muslim village, to the extent that might have constituted a claim to fear harm on the basis of his Hindu religion, it had been expressly considered and rejected by the Tribunal: FCCA Reasons at [39].
The Circuit Court dealt with grounds 3 and 4 together. The Circuit Court undertook (at [41]-[63]) a detailed consideration of the evidence put forward by the appellant to the Tribunal and the findings made by the Tribunal. The Circuit Court also noted in particular (at [50]-[51]) that the Tribunal had the benefit of various written submissions which had been prepared on the appellant’s behalf by his migration agent both before and after the hearing. The Circuit Court concluded (at [61]-[62]) that the Tribunal had not misconstrued the appellant’s claims and that the conclusions it reached were open to it.
In the course of addressing these grounds of appeal, the Circuit Court (at [43]-[62]) rejected the appellant’s reliance on DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 (DAO16) in support of his contention that the Tribunal’s acceptance that the TMVP engaged in extortion, but that such extortion was only directed at business people, had no logical, rational or probative basis. The Circuit Court held that the facts of this case were distinguishable on the basis that, in this case, the Tribunal had not dismissed the evidence of any witness presented by the appellant, but instead weighed all of the evidence and simply did not believe the applicant’s claims.
The Circuit Court finally dealt with grounds 5 and 6 together. The Circuit Court found (at [64]-[71]) that the appellant’s contention that the Tribunal had breached s 420 and 422B of the Act, and thereby fallen into jurisdictional error, was mistaken as these provisions do not create any substantive rights or obligations in themselves. In any event, the Circuit Court found (at [72]) that it was clear from the Tribunal’s reasons, and the material contained in the court book filed in the Circuit Court more generally, that the appellant was afforded sufficient opportunity to appear before the Tribunal to give evidence and present arguments. The Circuit Court concluded (at [73]) that the Tribunal complied with its obligations under the Act and that the appellant was not denied procedural fairness or natural justice.
Appeal to this Court
The appellant appealed to this Court from the decision of the Circuit Court to dismiss his judicial review application. He relied upon three grounds of appeal in his notice of appeal:
1. The Tribunal acknowledged the appellant was a Tamil Hindu. The [Circuit Court] erred in holding with the Minister that no claim arose on the basis of the appellant's status as a Hindu. Such finding was clearly not supported by the evidence before the Tribunal.
2. The [Circuit Court] erred in holding with the Tribunal that it assessed the appellant's claim cumulatively being a Young Tamil of Hindu faith from East of Sri Lanka and a supporter of a TNA political party. It only assessed part of his claim but not all and thereby fell in to jurisdictional error.
3. The [Circuit Court] erred in distinguishing the appellant's case from [DAO16], as it was clear the Tribunal made a finding which was not logical or rational or otherwise lacked a probative basis. The [Circuit Court] erred by [its] finding that such finding was open to the Tribunal.
The appellant, with the assistance of an interpreter, appeared and represented himself at the hearing of the appeal in this Court. The appellant said that the Tribunal did not pay proper regard to his evidence that he would be discriminated against because of his religion as a Hindu. Accepting this as a claim for fear of harm for reason of his Hindu religion, the appellant made the further submission that the Tribunal was wrong in rejecting his evidence of membership of the political party TMVP.
Consideration
Ground of appeal (1) – The appellant’s status as a Hindu
The appellant contends that the Tribunal was wrong in finding that the appellant had not raised a claim to fear harm on the basis of his Hindu religion.
The Tribunal was required to consider those claims which were articulated by the appellant along with claims not expressly advanced but arising “squarely” on the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58]-[61].
The appellant’s migration agent provided comprehensive written submissions (extending to 51 pages) to the Tribunal. But those submissions make no claim to fear harm on the basis of the appellant’s religion. The claims made by the appellant at the hearing before the Tribunal and in the written submissions filed on his behalf make clear that his claims for protection only relied upon his Tamil ethnicity, imputed political opinion and membership of a particular social group (being “a failed asylum seeker/returnee from the West”).
The Circuit Court (at [37]) characterised the factual bases for the appellant’s claims as principally relating to:
(1)being forced to put up posters for the TMVP;
(2)his involvement with a TNA campaign; and
(3)being threatened and approached by the CID.
In addition to these bases, the Tribunal (at [74]) had also considered the appellant’s claim to fear harm from neighbouring Muslim villages. However, the appellant in his entry interview described the risk of harm from neighbouring Muslim villages as a “problem of ethnicity”. Furthermore, the appellant explained to the Tribunal that Muslims kill Tamils: AAT Reasons at [49]. So the appellant was, again, squarely connecting his fear of harm from Muslims to his Tamil ethnicity. This basis of the appellant’s claim was thus founded on his ethnicity, not his religion.
Regardless, the appellant’s claim to fear harm from Muslims was expressly considered and rejected by the Tribunal. The Tribunal concluded as follows at [74]:
The tribunal has considered claims raised by the applicant during his protection visa interview, as indicated in the delegate’s decision record. The applicant’s evidence on the alleged threats he faced from Muslims was vague and generalised and lacking in detail about specific incidents in which he claims Muslims killed Tamils or why he would be at risk. Country information does not indicate that Tamils are targeted by Muslims. Given the applicant’s vague evidence, the tribunal does not accept that Tamils in his area are killed by Muslims and does not accept that he faces either a real chance of serious harm or a real risk of significant harm from Muslims in surrounding areas.
The Circuit Court was, in my view, correct to find that no claim was made by the appellant based on his religion as a Hindu. The Circuit Court was also correct to find that, to the extent that the appellant’s claim to fear harm from Muslims might have been construed as a claim based on his religion, the Tribunal considered the claim and made findings that he did not face a real chance of serious harm or a real risk of significant harm from Muslims in surrounding areas.
For these reasons, the appellant’s first ground of appeal must be rejected.
Ground of appeal (2) – Failure to assess claims cumulatively
The appellant secondly contends that the Tribunal erred in failing to cumulatively assess the bases for the appellant’s claims, which were described in the second ground of appeal as being “a Young Tamil of Hindu faith from East of Sri Lanka and a supporter of a TNA political party”. The appellant alleges that the Tribunal only assessed part of his claim and thereby fell into jurisdictional error.
To the extent that this ground of appeal relies upon a complaint that the Tribunal did not take into account a claim to fear harm on the basis of the appellant’s Hindu religion, it must be rejected for the reasons expressed above in response to the first ground of appeal.
To the extent that this ground of appeal contends that the appellant’s claims were not considered cumulatively, then that contention is wrong. The Tribunal expressly considered all of the appellant’s claims on a cumulative basis at [99]-[100] of its reasons:
Having considered the applicant’s separate and cumulative claims, the tribunal does not accept that he faces a real chance of serious harm from the TMVP, other armed groups, Sri Lankan authorities including the CID, SLA or anyone else due to his Tamil ethnicity and imputed LTTE political opinion, any actual/imputed political opinion in support of the TNA and/or TMVP, as a failed asylum seeker/returnee from a western country, for having left Sri Lanka illegally or for any other Convention ground. The tribunal is therefore not satisfied that the applicant has a well founded fear of persecution.
Having considered the applicant’s separate and cumulative claims, the tribunal is further note satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will face significant harm or reasons of his profile as a Tamil including perceived LTTE support, his activities and alleged support for the TNA and/or TMVP, as a failed asylum seeker/returnee from a western country, for having left Sri Lanka illegally, having departed Sri Lanka illegally or for any other reason.
(Emphasis added.)
For these reasons, the appellant’s second ground of appeal must be rejected.
Ground of appeal (3) – Illogical or irrational findings
The appellant finally contends that the Tribunal made findings that were not logical or rational or otherwise lacked a probative basis. The particular findings which the appellant sought to impugn were, broadly, the factual matters described in grounds 3 and 4 of the grounds of review before the Circuit Court, as set out above at [15].
Findings of fact made by the Tribunal may be subject to review for jurisdictional error in limited circumstances. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, Crennan and Bell JJ expressed the following at [135]:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision maker does not come to that conclusion, or if the decision to which the decision make came was simply not open on the evidence of if there is no logical connection between the evidence and the inferences or conclusions drawn.
However, at [55] to [98] of its reasons, the Tribunal comprehensively analysed the evidence before it and set out its reasoning and various findings. In particular, the Tribunal relevantly stated at [57]:
The tribunal found much of the applicant’s evidence in relation to his alleged political campaign involvement generalised, vague and inconsistent. Furthermore, the applicant’s evidence about the nature, motivation and timing of various threats he received in Sri Lanka was convoluted, confused and inconsistent.
The Tribunal carefully considered the discrepancies in the appellant’s evidence and articulated various findings that it made in the course of rejecting aspects of that evidence. The reasoning of the Tribunal discloses that, in assessing the credibility of the appellant’s evidence, it took into account that he was young at the time the various events took place. At [58], the Tribunal relevantly stated:
The tribunal has considered submissions regarding the impact of the applicant’s youth on his credibility. It notes that at the time the applicant claims to have participated in election campaigning, ie 2010, he would have been 16/17 years old. The tribunal has taken account of the applicant’s age in its assessment of his credibility but is not satisfied that the inconsistencies, confusion and discrepancies identified in the applicant’s evidence, including in relation to threats received approximately two years after his alleged campaigning for the TNA and TMVP, can be simply explained due to his youth at the time of certain events.
I am of the opinion that it was open to the Tribunal, having regard to the evidence before it, including having regard to its assessment of the appellant’s credit, to have reached the findings that it did. The Tribunal’s reasons express a logical connection between the facts established before the Tribunal and the conclusions ultimately reached by the Tribunal. The Tribunal found (at [57]) that relevant aspects of the appellant’s evidence supporting his claim for protection were “generalised, vague and inconsistent and convoluted, confused and inconsistent”. The Tribunal then (at [57]-[71]) outlined the deficiencies in the evidence in considerable detail. The Tribunal considered whether these deficiencies in the appellant’s evidence were explained by the appellant’s youth or passage of time, but (at [58]) did not accept that they were. It was logically open to the Tribunal to find that the appellant’s evidence was not credible having regard to these deficiencies in his evidence. It was not illogical or irrational for the Tribunal to disbelieve the appellant’s evidence given its view that is was vague, implausible and inconsistent.
Finally, to the extent that this third ground of appeal contends that the Circuit Court was wrong to distinguish the present case from the facts of DAO16, that contention must also fail. The distinction drawn was correct. In DAO16, the Tribunal rejected the evidence of a number of “independent” witnesses without any rational basis: see DAO16 at [35]-[45]. In that case, the Tribunal entirely failed to analyse the evidence and explain why it was not accepted. The present case is very different. Here the Tribunal’s reasons disclose a close examination of the evidence and detailed and logical reasons for its non-acceptance.
It follows that I also reject the appellant’s third ground of appeal.
Conclusion and orders
For these reasons, the appellant’s appeal to this Court is dismissed. The appellant is to pay the Minister’s costs of and incidental to the appeal, fixed in the lump sum of $3,800.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson. Associate:
Dated: 2 December 2019
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