BCB16 v Minister for Immigration

[2018] FCCA 3296

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCB16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3296

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – jurisdictional error – whether the tribunal failed to consider the risk of harm to the applicant given his perceived political support –– application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593; 75 ALR 630; 75 ALD 630

Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 10

Tran v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 297

Applicant: BCB16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION 

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 962 of 2016

Judgment of: Judge Mercuri

Hearing date: 29 June 2018

Date of Last Submission: 29 June 2018

Delivered at: Melbourne

Delivered on: 16 November 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondents: Mr Cunynghame

Solicitors for the respondents: Sparke Helmore

ORDERS

1. The applicant’s application for judicial review filed 10 May 2016 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 962 OF 2016

BCB16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on 14 April 2016. In its decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and

   
   

   Border Protection (“the Minister”) made on 17 October 2013 refusing to grant the applicant’s protection (class XA) visa (“the visa”).

2. The tribunal’s decision is found in the court book at pages 290 to 306.

Summary

1. For the reasons that follow, this application for judicial review fails.

2. I therefore make orders dismissing the proceedings and order the applicant to pay the first respondent’s costs.

The applicant’s claims

1. The applicant, a citizen of Sri Lanka, arrived in Australia at Christmas Island on 7 July 2012 as an unauthorised boat arrival.[1]

   [1] Court book pages 13 to 33.

2. The applicant’s claims are set out in his Irregular Maritime Arrival Interview[2] and his statutory declaration.[3] In addition, the applicant’s representatives provided a submission in support of his application for review by the tribunal dated 25 March 2014[4] and a post hearing submission dated 21 September 2015.[5] 

   [2] Court book page 13 to 33.

   [3] Court book pages 108 to 111.

   [4] Court book pages 193 to 247.

   [5] Court book pages 273 to 285.

3. The applicant’s claims, as summarised by the tribunal, are that:[6]

   [6] Court book pages 290 to 306.

   a)He was born in Araipattai, Batticaloa on 16 June 1979.

   b)He is a Tamil and a Hindu. He has no children, his parents are deceased and all of his six siblings (except for one brother), continue to live in Sri Lanka. His brother lives in Dubai on a working visa.

   c)He left Sri Lanka because paramilitary groups are searching for him and he fears for his life.

   d)In 1999 the applicant’s family home was attacked by the Sri Lankan Army or an associated paramilitary group. They threw a bomb into the front yard destroying most of the house. The family believed the incident was due to the village being under military control and the applicant’s father being a government appointed representative of the village, who would not succumb to the demands of those paramilitary groups.

   e)They filed a report about the incident with the police but could not prove who was responsible.

   f)For the next six months, people would approach their home and ask the applicant’s father about the applicant and his brother. They wanted him to join their group because they were young and there were many boys in their family. The applicant believed they wanted one of the brothers to join them so they could gain leverage in the area, given his father was a government official.

   g)After this occurred, the applicant fled to Dubai where he worked over the next six years. He feared for his life in Sri Lanka and so working in Dubai was the only option available to him at the time. During this time, he returned to Sri Lanka on three occasions, once to visit his father who was gravely ill, the second time to attend his father’s funeral. The applicant says that he was reluctant to return but had no choice.

   h)The applicant then returned a third time to Sri Lanka in 2006 after hearing that the situation had improved and Tamils were no longer being persecuted.

   i)Unfortunately, there was a split with the Liberation Tigers of Tamil Eelam (“the LTTE”) shortly after his return and as a result many young Tamil men, including the applicant, were targeted for recruitment. The LTTE came to his house asking for him but his mother told them he was not home. He lodged a second complaint with the police but nothing was done. He also made a complaint with the Human Rights Commission in Sri Lanka (“the HRC”) but again nothing was done. They gave him a card and told him to come back and see them if he was harassed again.

   j)Shortly after this, he began receiving threats from various paramilitary group members as well as the Criminal Investigation Department (“the CID”). They came to his house and threatened to kill him if he did not withdraw his complaints to the police and to the HRC. He told them he would withdraw the complaints so that they would leave him but he did not withdraw them. He feared for his life and said his only option was to live in hiding for the next few months hoping it would all go away.

   k)Unfortunately for him it did not go away, for the past six years their house has been frequently visited by various unknown men asking about him and his older brothers. Each time, his younger brothers or sister would say that he and his older brothers were not home. This is how they had been for the six years prior to his departure from Sri Lanka.

   l)The applicant also believes that the Sri Lankan Army and associated paramilitary groups will harm or mistreat him should he return. He states that he fears this harm because he is a young Tamil male and because he fled illegally and sought asylum in a Western Country.[7]

   [7] Court book page 291 at paragraph [3].

The tribunal’s reasons

1. The tribunal accepted that the applicant was a Tamil who practiced the Hindu religion; and was prepared to accept that his father was a village leader; and that his family may have had difficulties with paramilitary or other groups because of this.[8]

   [8] Court book page 300 at paragraph [41].

2. The tribunal acknowledged that the applicant was “clear and consistent” regarding his claims that the Tamil Eelam Liberation Organisation (“TELO”)[9] was the group targeting and harassing his family and that this was what led him to flee to Dubai in 2000. However, the tribunal found these assertions to be “completely incompatible” with country information that indicated that TELO had disbanded after being decimated by the LTTE in 1987 and therefore rejected them. The tribunal found that, these claims directly contradicted country information to which it had referred. The tribunal also concluded that the applicant had:

   …fabricated these elements of his story, possibly in an attempt to draw disparate occurrences together into one more threatening to him on his return.[10] 

   [9] A paramilitary group.

   [10] Court book page 300 at paragraphs [42] to [44].  

3. The tribunal found that the applicant was unable to establish why TELO was only “after him” and did not harm other members of his family. This was a significant factor pointing to the lack of credibility of his claims.[11]

   [11] Court book page 301 at paragraph [45].

4. The tribunal found that the applicant was unable to explain how he had been able to hide himself from TELO for a number of years and that it was completely implausible that that a group or people with alleged connections to the government would be unable to locate the applicant for so many years.[12]

   [12] Court book page 301 at paragraph [46].

5. The tribunal considered that the applicant’s claims about why this group wished to harm him, lacked any substance whatsoever and did not accept his associated claims.[13] The tribunal found that the applicant was not a witness of truth and, whilst it accepted that his father and perhaps he and his family may have suffered some harassment from paramilitary groups prior to his departure for Dubai as a result, it did not accept that:

   a)the applicant left Sri Lanka because paramilitary groups were searching for him;

   b)his family house was attacked in 1999;

   c)people approached him and his brother to join a paramilitary group;

   d)he fled to Dubai in fear of his life;

   e)he was targeted for recruitment on return and lodged a complaint as a result; or

   f)that he received threats and would be killed unless he withdrew his complaint.[14]

   [13] Court book page 301 at paragraph [47].

   [14] Court book page 301 at paragraph [48].

6. The tribunal found that the applicant and his family were of no interest to any remnants of paramilitary groups which may remain, the CID, the Sri Lankan Army, associated groups or anybody else in Sri Lanka.[15]

   [15] Court book page 302 at paragraph [49].

7. Based on these findings and on country information regarding the availability of fraudulent documents, the tribunal found the police report and the HRC complaint slip to be fraudulent documents and did not give any weight to them at all.[16]

   [16] Court book page 302 at paragraph [50].

8. The tribunal accepted the applicant’s evidence that his home area was not controlled by the LTTE, that he did not hold a pro-LTTE opinion, and that he only supported the Tamil National Alliance (“the TNA”) political party by voting for them. Therefore, the tribunal found there was no basis to consider that the applicant had an imputed pro-LTTE or pro-TNA political opinion.[17]

   [17] Court book page 302 at paragraph [51].

9. The tribunal accepted that the applicant’s father and his family may have been harassed by paramilitary groups before the applicant left for Dubai. However, the tribunal found that this was some 15 years ago and those groups or affiliated groups would no longer be interested in the applicant for his father’s historical behaviour. The tribunal did not accept that the authorities would be interested in the applicant on return or that the applicant would be harmed as a result of his status as a young Tamil male, imputed pro-LTTE or pro-TNA political opinion, because he departed illegally and unsuccessfully sought asylum in a Western country or for any other reason.[18]

   [18] Court book page 302 at paragraph [52].

10. Having found that the applicant was not a person who the authorities would have any interest in because of his background and based on the country information available, the tribunal found the applicant would not be subjected to any mistreatment or interrogation on arrival in Sri Lanka other than the standard questioning procedures set out in the Department of Foreign Affairs and Trade (“DFAT”) country information. Accordingly, the tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his imputed political opinion, his Tamil race, his status as a young Tamil male, or due to seeking asylum in Australia.[19]

    [19] Court book page 303 at paragraph [53].

11. The tribunal found it was likely that the applicant would face criminal sanction for departing Sri Lanka unlawfully. The tribunal considered the relevant country information and on the evidence before it and found that the applicant and his family would have the capacity to pay the fine which would likely be imposed. The tribunal found that the entire process of being charged in relation his illegal departure would occur as a result of the enforcement of a law of general application. The tribunal did not accept that the applicant had a risk profile or that there was a real chance that the applicant would be singled out or treated differently, for one or more of the five Convention reasons, from anyone else charged with illegal departure from Sri Lanka.[20]

    [20] Court book page 303 at paragraph [54].

12. Having considered the totality of the applicant’s circumstances, the tribunal did not accept that the applicant had a well-founded fear of being persecuted on return to Sri Lanka for one or more of the convention reasons.[21]

    [21] Court book page 304 at paragraph [56].

13. In light of these factual findings, the tribunal did not accept that there was a real risk that the applicant would face significant harm at the hands of paramilitary remnants, the authorities or paramilitaries associated with the government for the claimed reasons.[22] The tribunal did not accept that the applicant would face a real risk of significant harm as a failed asylum seeker.[23]

    [22] Court book page 304 at paragraph [57].

    [23] Court book page 304 at paragraph [58].

14. Whilst the tribunal accepted that the prison conditions in Sri Lanka are poor, it did not accept that: “spending up to a fortnight in such conditions” amounted to significant harm as defined.[24] Furthermore, having regard to the procedures advice manual (“PAM3”) guidelines, the tribunal found that the poor prison conditions in Sri Lanka were not due to any intention by the Sri Lankan government to inflict severe pain or suffering or to cause extreme humiliation. The tribunal therefore did not accept that there was a real risk that the applicant would suffer significant harm as a consequence of the poor prison conditions during any period that he may spend in gaol on remand.[25] It did not accept that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm from the Sri Lankan authorities or anybody else.[26]

    [24] Court book page 305 at paragraph [60].

    [25] Court book page 305 at paragraph [61].

    [26] Court book page 306 at paragraph [62].

15. Having regard to the totality of the applicant’s circumstances and its anterior findings, the tribunal concluded that there was not a real risk that the applicant would suffer significant harm on return to Sri Lanka.[27]

    [27] Court book page 306 at paragraph [63].

Applicant’s oral submissions

1. At the hearing, as the applicant was representing himself, with the assistance of an interpreter, the role of the court in a judicial review application was explained to him and the applicant was invited to explain, in his own words, what he considered the error or errors made by the tribunal. He responded as follows:

   The submission I made to the Tribunal was about the problems I faced in the hands of TELO, which was a political organisation in Sri Lanka. The Tribunal disputed my evidence and said there wasn’t an organisation like that.  I gave evidence, and they did not accept that my…documentary evidence I gave were credible. That’s why I feel that the Tribunal did not give a fair…hearing of my issues.

   …

   Also they made an arbitrary decision that the evidence I gave were all fraudulent. But I know that they were all true documents. So I had no way of counter-acting and telling them what I provided was truthful documents, because they arbitrarily made a determination that they were fraudulent documents.[28]

   [28] Transcript page 5 at lines 35 to 47.

Ground one

1. The applicant’s first ground of review is:

   The Tribunal has not assessed the applicant’s claim of being a Young Tamil of Hindu faith from the North-East of Sri Lanka with perceived anti-government political views cumulatively and thereby fell in to jurisdictional error.[29]

   [29] Applicant’s application filed 10 May 2016.

2. The applicant did not file any written submissions in support of his application, notwithstanding an order by consent made on

   
   

   12 October 2016 directing that such submissions be filed 28 days prior to the hearing. 

3. The applicant’s oral submissions to the court today did not expand on this ground. 

4. The first respondent submits that this ground fails on the face of the tribunal’s decision record. I agree with the first respondent’s submission in this regard.

5. On a fair reading of the tribunal’s reasons, it is evident that the tribunal considered and dealt with the applicant’s claims to fear harm as a young Tamil of Hindu faith on an individual and cumulative basis and found that he did not face a real chance that he would be persecuted for these reasons. At paragraph 56 the tribunal concluded that it did not accept that if the applicant returned to Sri Lanka:

   …now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his race as a Tamil, his Hindu religion, an imputed political opinion in support of the LTTE or the TNA (based on his father’s refusal, the applicant’s filing of complaints with the police or the HRC, his illegal departure or his seeking asylum in Australia or any other reason) or his membership of the particular social group constituted as a young Tamil make (sic)  or by his family or for any other reason. I have considered the totality of (the applicant’s) circumstances…However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he return to Sri Lanka now or in the reasonably foreseeable future.[30]

   [30] Court book page 304 at paragraph [56].

6. At paragraph 57 of the decision record the tribunal also found, relying on country information, that the situation for Tamils in the North and East of Sri Lanka was improving and that on return to his home area he would not be of any adverse interest to the authorities. The tribunal also found that he would not face a real risk of significant harm in relation to these claims.[31]

   [31] Court book page 304 at paragraph [57].

7. I agree with the submissions of the first respondent that each of these findings were open to the tribunal on the material before it and this ground cannot be made out.

8. For these reasons, ground one is not made out.

Ground two

1. The applicant’s second ground of review is:

   The Tribunal has not assessed the applicant’s integer claim of perceived supporter of the TNA party.[32]

   [32] Applicant’s application filed 10 May 2016.

2. This ground also cannot be made out on the face of the decision record. At paragraphs 9; 23; and 56 to 57 of the tribunal’s decision record, the tribunal properly assessed the applicant’s claim to fear harm as a result of being a perceived supporter of the TNA party and found that he did not face a real chance or real risk of harm on return to Sri Lanka in relation to the claim.[33]

   [33] Court book page 293 at paragraph [9]; page 296 at paragraph [23] and page 304 at paragraphs [56] to [57].

3. For these reasons, ground two is not made out.

Grounds three and four

1. The applicant’s third ground of review is:

   The Tribunal’s claim that TELO was aligned with the LTTE but it was attacked by the LTTE and its leader was killed (decision record page 5) defied logic and tribunal misconstrued and lacked elementary reasoning and fell in to jurisdictional error.[34]

   [34] Applicant’s application filed 10 May 2016.

2. The applicant’s fourth ground of review is:

   The Tribunal’s decision that the applicant was not threatened by the TELO was not supported by any evidence.[35]

   [35] Applicant’s application filed 10 May 2016.

1. These grounds both relate to the tribunal’s findings in relation to the applicant’s claims relating to TELO. I will therefore deal with them together.

2. The applicant’s oral submissions set out in paragraph 23 above, in part relates to these grounds. In essence, the applicant complains that the tribunal did not accept his evidence in relation to the TELO. 

3. The first respondent submits that these grounds are misconceived.

4. In relation to ground three, the tribunal simply noted[36] that country information indicated that TELO was previously aligned with the LTTE, but the LTTE attacked and defeated them because they were perceived to be “too moderate”. There was no error in the tribunal’s finding that TELO were “decimated” by the LTTE in 1987 and that they would not have had armed remnants in 2000 or been engaging in recruitment activities.[37] There was also no error in the tribunal rejecting the applicant’s claims that TELO harassed him and his family before he left for Dubai, noting that it was inconsistent with the country information before it concerning TELO.[38]

   [36] Court book page 294 at paragraph [15].

   [37] Court book page 300 at paragraph [42].

   [38] Court book page 300 at paragraph [43].

5. The tribunal’s findings were open on the material before it, in circumstances where the choice and assessment of country information is a factual matter for the tribunal,[39] and that it is the tribunal’s role to identify such material as it finds relevant to its reasoning and to give it appropriate weight.[40]

   [39] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13].

   [40] Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs 2003] FCAFC 184; 236 FCR 593; 75 ALR 630; 75 ALD 630 at [46] per French, Sackville and Hely JJ.

6. Further, the tribunal discussed the relevant country information concerning TELO with the applicant at the hearing.[41] Following the hearing, the applicant’s representative also made written submissions to the tribunal addressing the activities of TELO at the time of and after the applicant’s return to Sri Lanka in 2006.[42] The tribunal had regard to this submission along with the country information and other claims that were made in the submission.[43]I accept and agree with the first respondent’s submission that it cannot be said that there was no evidence at all before the tribunal upon which its findings rejecting the applicant’s claims to fear harm from TELO were based.[44]

   [41] Court book page 293 at paragraph [11]; page 294 at paragraph [15]; page 295 at paragraph [16]; and page 298 at paragraph [29] to [30].

   [42] Court book page 273.

   [43] Court book page 300 at paragraph [40].

   [44] Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at [355] per Mason CJ.

7. I find that the tribunal considered all of the evidence available to it in relation to this issue, including evidence from the applicant. It properly weighed that evidence and reached a conclusion which was reasonably open to it. In these circumstances, this ground does not disclose a jurisdictional error and really invites the court to undertake impermissible merits review.

8. To the extent that the applicant in his oral submissions, refers to the documents which the tribunal found were fraudulent, this finding was open to the tribunal and this finding does not disclose any jurisdictional error. At paragraph 33, the tribunal put to the applicant country information which indicated that document fraud was widely practiced in Sri Lanka.[45] At paragraph 34, the tribunal put to the applicant that this country information together with its other concerns about the applicant’s evidence (which were addressed earlier in the tribunal’s reasons) that the tribunal may doubt the genuineness of the police document and the HRC complaint document.[46] 

   [45] Court book page 298 at paragraph [33].

   [46] Court book page 299 at paragraph [34].

9. The conclusions about the veracity of the documents provided by the applicant in support of his claims were reasonably open to the tribunal and do not disclose any jurisdictional error.

10. For these reasons, ground three and ground four are not made out.

Ground five

1. The applicant’s fifth ground of review is:

   The tribunal failed to assess the applicant’s integer claim that he was persecuted by the TELO and other groups aligned to the government.[47]

   [47] Applicant’s application filed 10 May 2016.

2. This ground also fails on the face of the decision record. The tribunal assessed the applicant’s claims with respect to persecution by the TELO and other government groups.[48] Insofar as the applicant contends that the tribunal failed to assess the applicant’s claim because it failed to find that the applicant’s claim amounted to a real chance or real risk of harm, such a challenge amounts to an impermissible attack on the merits of the tribunal’s findings of fact.

   [48] See in particular, paragraphs [43] to [44], [48] and [52] of the tribunal’s decision record.

3. For each of these reasons, ground five must also fail.

Conclusion

1. As none of the applicant’s grounds have been made out, the application should be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 16 November 2018