BCD16 v Minister for Immigration

[2017] FCCA 1914

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1914

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in significant respects and other fears found not to be well-founded – whether the Tribunal overlooked a claim or asked itself the wrong question, failed to consider corroborative evidence or breached s.425 of the Migration Act 1958 (Cth) considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576

Dranichnikov v Minister for Immigration (2003) 197 ALR 389

Minister for Immigration v SZKTI [2009] HCA 30; (2009) 238 CLR 489
Minister for Immigration v SZSRS [2014] FCAFC 16, (2014) 309 ALR 67
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

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

Applicant: BCD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1154 of 2016

Judgment of: Judge Driver

Hearing date: 14 August 2017

Delivered at: Sydney

Delivered on: 19 September 2017

REPRESENTATION

Counsel for the Applicant: Mr R Chia

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS 

1. The application as amended in court on 14 August 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1154 of 2016

BCD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 April 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the applicant’s submissions filed on 1 August 2017.

3. The applicant is a citizen of Sri Lanka, a male of Sinhalese background and Buddhist faith, born in Colombo on 30 August 1983.

4. The applicant arrived in Australia on 9 July 2008, the holder of a student (Class TU) (subclass 573) visa, and applied for a protection (Class XA) visa on 13 May 2014.

5. The applicant’s protection visa application was accompanied by an undated statement, copies of biographical evidence and various newspaper articles concerning the treatment of media professionals, the behaviour of Sri Lanka High Commissioner Thisara Samarasighe, the release of the Field Marshal and politician Sarath Fonseka from prison, and the treatment of asylum seekers returned to Sri Lanka.[1]

   [1] Court Book (CB) 53-97.

6. In his statement, the applicant said that he and his family were supporters of the United National Party (UNP) and that growing up he had always dreamed of being a Member of Parliament, whilst his brother had aspired to become a journalist.  The applicant said that after he finished his schooling, he started to work with his brother at Ravaya newspaper, which along with the UNP was against the escalation of hostilities between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan authorities. The applicant said that as a UNP supporter he had met with LTTE commanders in Jaffna, Vanni, Batticaloa and Trincomalee.  He said that he was opposed to the ruling Rajapaksa brothers, who were in turn opposed to the UNP and sought to suppress the media.[2]

   [2] CB 12-13.

7. The statement continues that, with the dissolution of the ceasefire agreement, the Rajapaksa brothers started to intimidate, harass and kill those who worked against them, and the applicant and his brother stopped visiting LTTE supporters and feared publishing articles against the government.  The applicant said he later received threats and was accused of working against the government and assisting LTTE cadres.  The applicant said that around March 2008 he was detained by the Criminal Investigation Department (CID), beaten and accused of supporting the LTTE.  The applicant then left Sri Lanka as soon as his student visa was approved.

8. In Australia, the applicant accepted an offer to work as a radio presenter at Sak Nada Community Radio in Sydney, providing coverage of events in Sri Lanka, including the Rajapaksa government’s involvement in corruption, abductions and violence.  However, he received calls from Sinhalese people in Australia and the Sri Lankan High Commission, telling him to stop canvassing against the government.[3]

   [3] CB 14.

9. The statement continues that after the defeat of the LTTE in 2009, the applicant thought that peace would return to Sri Lanka and he gave in to his father’s requests to come and see him.  However, while he was in Sri Lanka he was interviewed by police, who said that as a newsreader in Australia he had been acting against the government.  The applicant was released after bribes were paid to the police and he returned to Australia before he could be arrested again.[4]

   [4] CB 15.

10. The applicant was interviewed in relation to his protection visa application by the delegate on 24 October 2014 and provided further supporting evidence in the form of a Service Appreciation Letter, evidencing his work for Sak Nada community subscription station, and photographs of the applicant at a demonstration against the Sri Lankan government in Canberra in 2010 and in the Northern Province of Sri Lanka in 2003 and 2005.[5]

    [5] CB 115-118.

11. By letter dated 31 October 2014, the applicant was notified of the delegate’s decision to refuse his application for a protection visa.[6]  The delegate found the applicant to lack credibility, referring to his manner and demeanour at the interview and the fact he had returned to Sri Lanka and that he had delayed applying for protection.  The delegate accepted that the applicant’s brother was a journalist in Sri Lanka but did not accept that the applicant had worked as a journalist or in a media role and did not consider he would have a risk profile that would bring him to the adverse attention of the Sri Lankan authorities.  The delegate concluded that the applicant was not a person owed protection under the Refugees Convention or the complementary protection provisions of the Migration Act 1958 (Cth) (Migration Act).

    [6] CB 119.

The Tribunal decision

1. On 25 November 2014, the applicant applied to the Tribunal for merits review of the delegate’s decision.[7]

   [7] CB 141.

2. On 9 March 2016, the applicant attended a hearing before the Tribunal and gave evidence with the assistance of an interpreter in the Sinhalese and English languages.

3. By letter dated 14 April 2016, the applicant was informed of the Tribunal’s decision to affirm the delegate’s decision to refuse him a protection visa and was provided with a copy of the Tribunal’s decision record.

4. The Tribunal found that the applicant was “not a credible or a truthful witness” and that he had “distorted and fabricated evidence regarding his activities and the problems he faced in Sri Lanka”.[8]  In relation to the trips the applicant had claimed to have taken with his journalist brother to the north of Sri Lanka before dissolution of the ceasefire agreement, the Tribunal did not accept that the applicant could have afforded the time to accompany his brother to the north if he had been working full-time in Colombo.  It did not find convincing the applicant’s explanation of the tasks he did on these trips or the proposition that the LTTE commanders would have engaged in discussions with a young Sinhalese man who was not in any position of leadership.   The Tribunal also did not accept that the applicant was detained by the CID in 2008 on suspicion of involvement with the LTTE, finding his evidence in that regard to be contradictory and unconvincing, and inconsistent with the fact that he was able to leave Sri Lanka shortly thereafter without any difficulty.[9]

   [8] CB 193 at [57].

   [9] CB 194.

5. The Tribunal accepted that the applicant had worked for an online community radio station in 2009 and 2010 and accepted that he had spoken about political issues and may have criticised the Sri Lankan government.  However, the Tribunal found that the applicant had exaggerated the significance and impact of this work.  It did not accept that he had been threatened or detained when he returned to Sri Lanka in 2011 due to this involvement with the station or that he was threatened by the High Commissioner or other Sinhalese persons in Australia.[10]

   [10] CB 195-197.

6. The Tribunal concluded that it was not satisfied that there was a real chance that the applicant would suffer serious harm if he returned to Sri Lanka or that there were substantial grounds for believing that there was a real risk he would suffer significant harm. The Tribunal concluded that the applicant was not owed protection under the Refugees Convention or the complementary protection provisions of the Migration Act.[11]

   [11] CB 199.

The present proceedings

1. These proceedings began with a show cause application filed on 10 May 2016.  The applicant now relies upon a proposed amended application annexed to his submissions.  I gave leave for the applicant to file and rely upon that amended application at the trial on 14 August 2017.  The grounds in the amended application are:

   1. The second respondent (“Tribunal”) failed to consider whether there was a real chance the applicant could be subjected to serious harm by reason of imputed membership of the particular social group journalists and media professionals in Sri Lanka.

   2. Further or in the alternative, the Tribunal asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.

   Particulars

   The Tribunal failed to consider whether the applicant would face a generalised risk of harm as a perceived journalist or media professional.

   3. Further or in the alternative to 1 and 2, the Tribunal failed to consider corroborative evidence in the form of a report dated 25 October 2011 regarding the Sri Lankan High Commissioner to Australia.

   4. Further or in the alternative to 1, 2 and 3, the Tribunal failed to comply with the requirement under section 425 of the Act to “invite” the applicant to give evidence and present arguments in relation to the issue of whether, upon return to Sri Lanka, the applicant would pursue politics as a career or be a political activist.

2. In addition to the court book filed on 27 July 2016, I have before me as evidence the affidavit of Gail Margaret Hargreaves made on 22 August 2016, to which is annexed a transcript of the Tribunal hearing. 

3. Both the applicant and the Minister made pre-hearing submissions as well as oral submissions through their counsel.

Consideration

Grounds 1 and 2

1. These grounds are related.  The applicant contends that the Tribunal failed to consider whether he would suffer harm by reason of imputed membership of the particular social group of journalists and/or media professionals in Sri Lanka, or to consider whether the applicant would be subject to a generalised risk of harm as a journalist or media professional.  The applicant relies upon the decision of the High Court in Dranichnikov v Minister for Immigration.[12] 

   [12] (2003) 197 ALR 389.

2. This case is, however, readily distinguishable from Dranichnikov.  In Dranichnikov, the Tribunal accepted the applicant’s claims of business activity. As I pointed out to counsel for the applicant in argument, if Mr Dranichnikov’s claims of business activity had been rejected by the Tribunal, or if his business activities had been found to be inconsequential, the outcome in that case would probably have been different. In the present case, the Tribunal rejected the applicant’s claim to have worked with his brother as a journalist in Sri Lanka and found that his broadcasting activities in Australia were inconsequential. As stated at [16] above, the Tribunal found that the applicant had exaggerated the significance and impact of his broadcasting reports in 2009 and 2010, and found that he was not of any interest to the Sri Lankan authorities as a result of those broadcasting activities.[13]  The Tribunal also rejected the applicant’s claim that he had received telephone calls from unknown Sinhalese people as a result of his broadcasts.[14]  It did not consider that the applicant’s participation in political programmes for community radio stations in Australia between 2012 and 2014 angered the former Sri Lankan government, or that he faced a real chance of harm from them or he received death threats from unknown persons as a result.[15] 

   [13] CB 195 at [67]-[71].

   [14] CB 196 at [78].

   [15] CB 197 at [81]-[84].

3. I accept the Minister’s submission that there was no “substantial, clearly articulated argument relying upon established facts”[16] that the applicant faced some other form of harm than that which was rejected by the Tribunal, because of his work or participation with community radio stations in Australia.  Nor did any such unarticulated argument squarely arise within the principles in NABE v Minister for Immigration (No 2)[17] merely because the Tribunal accepted that the applicant had participated in a community radio station in Australia.  If the applicant wished to argue that he would be perceived as a journalist or media professional in Sri Lanka and feared harm based on this perception, he needed to articulate such a claim before the Tribunal.  It would seem unlikely that such a claim could succeed, given the Tribunal’s finding at [69][18] that the community station was not particularly successful and did not have a large international audience.  In any event, it was not raised and did not clearly arise on the Tribunal’s own findings, which do not suggest that the applicant has any profile as a journalist or media professional in Sri Lanka.

   [16] Dranichnikov at [24].

   [17] (2004) 144 FCR 1.

   [18] CB 195.

4. I reject the suggestion in the applicant’s submissions that the Tribunal required that he be “singled out” for harm.  On the Tribunal’s findings, there was no risk of harm to the applicant for any reason.  If he wished to claim that he feared harm simply as a member of a perceived group of journalists, separately to his fears from the former Sri Lankan government, then it was for him to articulate this claim to the Tribunal.  He did not.  Indeed he agreed at the Tribunal hearing that he, unlike his elder brother, was not a journalist.[19]

   [19] Transcript, 5.9.

5. I conclude that the Tribunal considered the applicant’s claims as put and that there was no error in relation to the formulation of any particular social group.  Neither was there any unconsidered issue in relation to any generalised risk of harm.  I reject the first two grounds. 

Ground 3

1. By his third ground of judicial review, the applicant submits that the Tribunal failed to have regard to a report the applicant had provided to the Minister’s Department with his protection visa application, which is entitled “Australians call for the removal of Sri Lankan High Commissioner” and dated 25 October 2011 (Report).[20]  In that Report, the author, Bruce Haigh, a retired diplomat and political commentator, states, amongst other things, that the then Sri Lankan High Commissioner to Australia, Thisara Samarasinghe, had been named in a submission by the Australian chapter of the International Commission of Jurists containing allegations of war crimes, that the Sri Lankan High Commission in Australia had conducted a campaign of harassment in Australia and that people had been visited and intimidated in their homes and at odd hours.

   [20] CB 64-65.

2. The applicant had claimed that he had been threatened by the Sri Lankan High Commissioner in Australia as a result of his broadcasts for the Sri Lankan community station, Sak Nada.  The Tribunal accepted that the applicant had worked for Sak Nada in 2009 and 2010 and that he had spoken about political issues and may have criticised the Sri Lankan government.  It also accepted that the Sri Lankan government monitors the activities of Sri Lankans resident in Australia.[21]  However, the Tribunal found the applicant’s claim that the High Commission had threatened him to be “far-fetched and implausible”.[22]  The Report is said to have corroborated the applicant’s claims that the High Commission had not just monitored, but also threatened the applicant, because it was evidence that the High Commission had in the past “conducted a campaign of harassment” against Sri Lankans living in Australia.

   [21]CB 195 at [67]; CB 196 at [77].

   [22]CB 196 at [77].

3. Whilst the applicant’s contention is clearly arguable, I prefer the Minister’s submissions on this ground.

4. The opinion of Mr Haigh at CB 65.2 includes a sentence that states:

   Over the years the Sri Lankan High Commission in Australia has conducted a campaign of harassment against Sri Lankan Tamils living in Australia.

5. However, the applicant is Sinhalese.[23]  The opinion is therefore not so obviously relevant to the applicant’s claims that one would infer from it not being specifically mentioned at [77][24] that it was overlooked by the Tribunal within the principles in Minister for Immigration v SZSRS.[25] 

   [23] CB 186 [8].

   [24] CB 196.

   [25] [2014] FCAFC 16, (2014) 309 ALR 67 at [27], [43].

6. Further, I am not persuaded that the Tribunal did not take the opinion of Mr Haigh into account.  At [78] the Tribunal stated:[26]

   In reaching this conclusion I have considered the letter from Sak Nada.  However, while the letter states that the station was contacted by the Sri Lankan High Commission and questioned about the applicant’s coverage of a demonstration in 2010, it does not provide corroboration of his claim that he was threatened by the High Commissioner or any other Sri Lankan officials in Australia.  It merely states that the applicant had advised the station that he was receiving threats.  In light of the applicant’s general lack of credibility and demonstrated willingness to fabricate claims, including the claim that his radio programs in Australia led to his detention in Sri Lanka in 2011, I have doubts about the genuineness and veracity of this document.  However, even if I accept that the station was questioned by the High Commission about the applicant’s coverage of a demonstration in 2010, there is no credible evidence that he experienced problems with the Sri Lankan High Commission in Australia or with anyone in Sri Lanka because of this.  I have given very little weight to this document.

   [26] CB 196.

7. While in that paragraph the attention of the Tribunal is directed specifically to the letter from Sak Nada, it needs to be read in conjunction with the preceding paragraph which states:[27]

   In considering this claim I have noted the applicant’s claim that he was threatened by the Sri Lankan High Commissioner in Australia because of his broadcasts on community radio in 2009-2010.  However, while I accept the Sri Lankan government monitors the activities of Sri Lankan resident in Australia, particularly Tamils involved in activities that might suggest that they are involved in attempts to resurrect the LTTE, I find the claim that the Sri Lankan High Commission would have threatened the applicant’s life because he was critical of the Rajapaksa government in 2009 or 2010 to be far-fetched and implausible.  Furthermore, the claim that the Sri Lankan High Commission was so incensed by the applicant’s reports that he threatened his life does not sit well with the evidence that he returned to Sri Lanka in early 2011 without experiencing any problems.  I do not accept that the applicant was threatened by the Sri Lankan High Commission because he criticised the Sri Lankan government.

   [27] [77].

8. Mr Haigh’s opinion may well have been considered by the Tribunal in relation to that paragraph, given that it refers to the Sri Lankan government monitoring the activities of Sri Lankans in Australia, particularly Tamils involved in activities perceived to be hostile.  The Tribunal may well have concluded that the letter from Sak Nada needed to be specifically referred to, but the more general opinion of Mr Haigh did not.

1. I reject Ground 3.

Ground 4

1. I accept the applicant’s contentions concerning the general principles bearing upon this ground.

2. Section 425(1) of the Migration Act provides, relevantly, that:

   The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

3. Whether a new “issue” has arisen, which triggers an obligation to further “invite” the applicant, depends upon the circumstances of the case.[28]  However it will not be enough that that issue has been raised only at a general level.  In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (Alphaone),[29] the Full Court of the Federal Court stated:[30]

   Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement … extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

   [28] Minister for Immigration v SZKTI [2009] HCA 30; (2009) 238 CLR 489 at [51].

   [29] [1994] FCA 1074; (1994) 49 FCR 576 per Northrop, Miles and French JJ (as his Honour then was).

   [30] Alphaone at [30].

4. In SZBEL v Minister for Immigration (SZBEL),[31] the High Court applied Alphaone in the context of s.425 of the Migration Act. The Tribunal in SZBEL had invited the appellant to the hearing and then asked him questions that elicited from him the same description of events as he had given in his statutory declaration. At no stage did the Tribunal challenge what the appellant said or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be “implausible”.  The Federal Court had rejected the appellant’s application for judicial review on the basis that there was no obligation on the Refugee Review Tribunal (RRT) to reveal its reasoning process to the appellant.  However, the High Court, applying Alphaone, held that s.425 of the Migration Act required the RRT to specifically identify the issues that were dispositive of the review and invite the applicant to give evidence and make submissions on those issues. The “issues arising in relation to the decision under review” can be identified by reference to the issues which had been decided differently by the delegate:[32]

   … The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

   The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review.”  That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

   … Ordinarily … the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

   [31] [2006] HCA 63; (2006) 228 CLR 152.

   [32] SZBEL at [34]-[37].

5. In the present case, the applicant had said that, growing up in Colombo, he had been a UNP supporter and was interested in politics but that his dreams of entering into politics “were shattered of returning back to Sri Lanka in the future”.[33]

   [33] CB at 12, 15.

6. In the present case, the applicant contends that the delegate’s decision does not record any consideration given to how the applicant would act and, in particular, whether he would be politically active if returned to Sri Lanka.  The delegate’s reasoning appears to have stopped short at finding that the applicant was not a credible witness on that issue and that, while she accepted the applicant’s brother had been a journalist, she did not accept that the applicant worked as a journalist or in a media role.

7. On review the Tribunal held that, upon return to Sri Lanka, “while [it] accept[ed] that the applicant may become involved in politics in a minor way, [it did] not accept that he will pursue politics as a career or that he will a political activist”.[34]  This is said not to have been a matter that had been disputed by the delegate, nor put to the applicant at the Tribunal hearing.  The applicant asserts that he may have said that he would have resumed his attempts to find work as a radio broadcaster and that, in that capacity, he would be politically active; or that he may have said that he would not pursue politics because of a well-founded fear of harm.  The applicant complains that he was never given the opportunity to give evidence or make submissions on this issue.

   [34] CB 198 at [88] (error in original).

8. I am not convinced that the issue asserted by the applicant was anything more than a relatively minor item of evidence in relation to the applicant’s claim of political persecution by the former government of Sri Lanka.  Even if it were an issue (or a sub-issue), it was, in my view, subsumed in the general issue of the applicant’s credibility, which was clearly identified by the delegate.  The delegate reached the following conclusion about the applicant’s claims:

   I have taken into account that the applicant has a passport that is valid until 2016, and he has travelled between Sri Lanka and Australia lawfully, on his student visa.  While I acknowledge that he may be subjected to police checks and questioning to confirm his identity and that he did not have a criminal record or outstanding arrest warrant, apart from official procedures (5.9), I do not accept that the applicant is likely to be a person of concern to the Sri Lankan authorities, if he were to return to Sri Lanka, given his personal and travel history.

   In considering the applicant’s migration history, and given the applicant’s delay in applying for a Protection visa, and his subsequent return to Sri Lanka on two occasions, particularly as he has claimed that he left Sri Lanka to evade persecution, is incongruent with a genuinely held fear of persecution, and as he had no other options to remain in Australia, I consider the applicant’s true motive in lodging a Protection Visa application, is not out of a genuine fear of persecution but rather, as an alternative migration pathway to remain in Australia.  As discussed above, I have not found the applicant to be a credible witness at his testimony with regard to his claims, and I do not accept the veracity of the applicant’s claims.

9. In my view, the Tribunal’s conclusion that the applicant would not pursue a career in politics or be a political activist is entirely consistent with both the Tribunal’s earlier findings and the over arching conclusion of the delegate.  Given the delegate’s wholesale rejection of the applicant’s claims of past harm and the attribution of a non genuine motive in lodging his protection visa application, the applicant must be taken to have been on notice not only that the credibility of his claims of past harm were in issue but also that his asserted future intentions were in issue. 

10. I reject Ground 4.

Conclusion

1. The applicant has been unable to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  19 September 2017