BCV15 v Minister for Immigration
[2016] FCCA 2315
•12 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCV15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2315 |
| Catchwords: MIGRATION – Visa – protection visa – error of law as to social group – ‘for reason of’ – error found – separate and unimpeachable – independent finding as to relocation – not challenged – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2)(aa)(2B)(a), 65 & 414 |
| Cases cited: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 Kaur v Minister for Immigration and Multicultural Affairs [2000] FCA 1401 |
| Applicant: | BCV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 224 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 3 March 2016 |
| Date of Last Submission: | 3 March 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 12 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Clark |
| Solicitors for the Applicant: | Hopelights Lawyers |
| Counsel for the Respondents: | Ms C Stokes |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application dated 26 June 2015, and the amended application dated 3 March 2016, are dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 224 of 2015
| BCV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’), as it then was, dated 20 May 2015 which affirmed an earlier decision of a delegate of the Minister not to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The applicant has raised three grounds as follows:[1]
[1] The applicant was given leave on 3 March 2016 to file amended grounds.
“1.The Applicant was denied procedural fairness by the Tribunal’s failure to address part of the Applicant’s claim and/or the failure to take into account a relevant consideration.
2.The Tribunal made an error of law in that it misapplied the test of membership of a particular social group.
Particulars
a)The Applicant claims he faces a real chance of serious harm if returned to Sri Lanka by reason of his membership of a particular social group, namely “Wealthy Tamil Businessman”.
b)The Tribunal accepted that such a social group exists and that the Applicant is a member of it.
c)The Tribunal found that the Applicant faced no real chance of serious harm by reason of his membership of that group, and rather that the Applicant was targeted by CID extortionists solely on account of his perceived wealth and capacity to pay.
d)The Tribunal failed to take into account or properly address the Applicant’s claim that the extortionists were able to threaten the Applicant by stating that if he failed to pay they would accuse the Applicant of involvement with Tamil separatists and detain him accordingly.
e)The Applicant was targeted because he is a Wealthy Tamil, not solely on account of perceived wealth.
f)The harm that the Applicant faces (detention and/or assault and/or torture under the guise of separatist links but in fact for failure to pay the extortionists) is because he is a Wealthy Tamil.”
Background
The applicant is a 38 year old Sri Lankan National who arrived in Australia by boat in August 2012 as an unauthorised maritime arrival. He applied for a protection visa on 11 January 2013.[2] In Sri Lanka he had run a business as a jeweller and has worked in that trade all his working life, his father having also been a jeweller. The business was based in Batticaloa where the applicant resided with his wife. In broad terms, he seeks protection under Australia’s Convention obligations claiming to be at risk of harm because:
a)As a Tamil, he has been accused of association with the Liberation Tigers of Tamil Eelam (‘LTTE’);
b)As a wealthy Tamil businessman, he has been a victim of extortion at the hands of the Criminal Investigation Department (‘CID’) of the Sri Lanka Police, which has caused him significant financial loss that has been carried out by means of repeated threats and on occasions beatings and torture; and
c)His membership of the social group of failed Tamil asylum seekers.
[2] Court Book (‘CB’) p 68.
The Tribunal conducted the hearing on 20 January 2015. The applicant was assisted by a migration agent on that occasion. Written submissions were provided on the applicant’s behalf both before and after the Tribunal hearing. As I have already noted, the Tribunal affirmed the decision of the delegate on 20 May 2015.
Tribunal findings and decision
The Tribunal identified that the issues of concern to it in reaching its conclusion included credibility of the applicant’s account, the nature of the claimed harm, and the potential for safe relocation to another area.[3]
[3] CB p 199 at [11].
The Tribunal made detailed and extensive findings of fact, including adverse findings of credit with respect to the applicant. In summary:
a)The applicant had a low level of connection to and involvement with the Tamil National Alliance (‘TNA’) which arose primarily because that organisation shared the same venue for its meetings at the Batticaloa Goldsmiths Co-operative Society, of which he was a member.[4] However, it found that the applicant had raised the fact of his limited involvement in an attempt to bolster his low political profile.[5] The Tribunal concluded that this low level of association with TNA would not be a current concern to the authorities, and nor would it be in the reasonably foreseeable future.[6] It concluded that the applicant did not face persecution now or in the reasonably foreseeable future on the basis of his imputed political opinion.[7]
[4] CB p 225 at [263]-[264].
[5] CB p 227 at [293].
[6] CB p 227 at [292].
[7] CB p 227 at [295].
b)The Tsunami of 2004 had caused only minor losses to the family and the applicant’s business after which he had re-established his jewellery business and prospered.
c)The Tribunal found that the applicant had experienced detention and questioning about his possible association with the LTTE by the CID for two days in 2000, and again in 2002 for three days. The fact of his release on both occasions caused the Tribunal to find that he had been cleared of significant association with the LTTE on those occasions.
d)The Tribunal rejected as an embellishment his claim to have been a victim of threats and extortion attempts in 2007. It did, however, accept that he had worked as a jeweller in Malaysia in 2007 and 2009, returning to Sri Lanka in 2009 to re-establish his jewellery business in Batticaloa.[8]
[8] CB p 225 at [267]-[269].
e)On the topic of extortion, the Tribunal accepted that individuals in government did commit acts of extortion and that the applicant’s financial circumstances meant that there was a real chance that he would face threats of extortion.[9] It concluded that the CID officials “could potentially falsely accuse him of separatist links” to obtain money.[10] In that regard, it accepted that the North and Northeast of Sri Lanka remained “heavily militarised” and that extortion is practiced in Batticaloa.[11]
[9] CB p 227 at [299].
[10] CB p 224.
[11] CB p 225 at [272]-[273].
f)On the question of ethnicity, the Tribunal found that Tamils are subjected to discrimination below the level of serious harm. Without more, the Tribunal found that ethnicity alone did not give rise to a real chance of serious harm and accordingly the applicant would not, on account of his ethnicity, face a real chance of serious harm now or in the foreseeable future.
g)The Tribunal addressed the implications of the applicant’s membership of the social group of Tamil businessmen, wealthy Tamil businessmen and businessmen. It found the applicant would be a member of all of these groups. It found that the chance of harm with respect to the applicant was not because of the applicant’s ethnicity or because he was a businessman, but because he was seen as having a capacity to pay in response to threats of extortion. The chance of harm was found to be coincidental to his membership of the social group and not as a result of it. The Tribunal expressed it in this way:
“However, as the motive is not because he is Tamil or a Businessman that he is targeted. It is for reasons of monetary gain. It is because they perceive him to be able to pay the extortion and the motivation is one which is solely pecuniary gain and without any Convention ground. I find that it is not for reason of his Tamil status, his being a businessman or a wealthy Tamil businessman. It is for reasons of extortion for monetary gain. I have therefore considered this under the Complementary Provisions discussed below.”[12]
Accordingly, it found that the applicant faced no real chance of serious harm for a Convention reason.[13]
h)The Tribunal found that the applicant faced no real chance of serious harm as a consequence of his status as a failed asylum seeker.[14] It found that he did not face a real chance of serious harm as a consequence of his illegal departure.[15] It considered those aspects cumulatively as well as singly with respect both to present and the reasonably foreseeable future.[16] Having made those findings, the Tribunal then summarised its conclusions as follows:
“Having considered his claims in full I find that the applicant does not face a real chance of serious harm for reasons of his ethnicity, religion, nationality, membership of a particular social group or political opinion.
This being the case, I find that the applicant does not meet the criteria of s.36(2)(a) and he is not a refugee.”[17]
i)The Tribunal then turned to consider the complementary protection provisions against the factual findings it had made. It repeated that it accepted that the applicant had been subjected to extortion by the local CID. As the extortion had been at the hands of local police, the Tribunal reminded itself of the re-location provision, s.36(2)(aa)(2B)(a).[18] It considered his circumstances and concluded that the risk of local police officers locating the applicant if he were to relocate to Colombo was so remote that it did not amount to a real risk. It concluded that it was reasonable in the sense of being practicable for the applicant to relocate to Colombo.[19] The Tribunal gave detailed consideration as to whether the applicant would suffer significant harm by reason of his illegal departure. It concluded that there were not substantial grounds to believe that would be the case. It concluded that Australia did not owe protection obligations to the applicant under s.36(2)(aa).
[12] CP p 228 at [305].
[13] CB p 227-228 at [300]-[305].
[14] CB p 228 at [311].
[15] CB p 229 at [322].
[16] CB p 229 at [323].
[17] CB p 229 at [324]-[325].
[18] CB p 230 at [329].
[19] CB p 230 at [341].
Submissions of counsel
Applicant’s submissions
Ms Clark for the applicant submitted with respect to ground one of the application, that the Tribunal failed in its obligation to conduct a review by virtue of its failure to address a significant component integer of the applicant’s claim to membership of a particular social group. She submits that whilst the Tribunal did address and it accepted the ongoing military presence in Sri Lanka, and the ability of the CID to falsely accuse the applicant of separatist links, it did not consider this aspect with respect to his claim to being a member of the social group of Tamil businessmen, or wealthy Tamil businessmen. Rather, it considered the question of ethnicity and his relative wealth as separate issues. It was the combined effect of those attributes that the applicant says was the proper basis against which to consider the applicant’s claimed fear of persecution.
With respect to the second ground, the applicant submitted that there was an error of law with respect to the approach to the question of his membership of a social group. Ms Clark submitted that there was a failure to consider the reason he claimed his membership of the group of wealthy Tamil businessmen made him a target of persecution.
Having concluded that the applicant was a member of the social group of wealthy Tamil businessmen or Tamil businessmen, it failed to apply the relevant legal principle to the facts asserted by the applicant. It was by virtue of the fact that they were susceptible to false accusations of involvement with the LTTE, in combination with their capacity to pay, that they were targeted. Ms Clark submitted that there was no analysis of this in the Tribunal reasons. The susceptibility to false accusations was the discriminatory reason for the persecution and there was no finding with respect to this. This caused the Tribunal to fail to take into account a relevant consideration and as such the Tribunal exceeded its jurisdiction.
For the first respondent, Ms Stokes submitted[20] with respect to ground one, that it was necessary to consider the substance and not merely the form of the Tribunal’s reasons. A reading of the Tribunal’s reasons discloses that it comprehensively considered and dealt with all of the applicant’s claims, setting out his claims in full at paragraph 12 of the Decision Record. It specifically set out that part of the applicant’s submissions that dealt with the social group Tamil Businessmen and made the following express finding to which I have already referred:
“With the government scrutiny still on possible separatists who are Tamil I cannot dismiss as remote and insubstantial that the local CID officials he claims sought to extort money from him could potentially falsely accuse him of separatists links to get that money.”[21]
[20] I will summarise both the oral and written submissions of the first respondent in this section.
[21] CB p 224 at [254].
Ms Stokes submitted that the relevant claim was considered and rejected by the Tribunal on the basis that any harm would be because the local CID would be motivated purely by a desire for pecuniary gain, not by reference to his membership of any social group, and accordingly not for a Convention ground. For this reason, she submitted that ground one should fail.
With respect to ground two, the first respondent submitted that this ground was in essence a reformulation of the complaint made in ground one.
It submitted that the factual finding that the reason for the feared harm was a desire for pecuniary gain on the part of local CID officers, who perceived him as having the means to pay, was open and was dispositive of that claim.
It was submitted that even if an error had been made of the type contended for by the applicant, the relocation finding amounted to an independent basis for the Tribunal’s decision and accordingly it would be appropriate to refuse relief in any event.
Consideration
Ground one
The Tribunal had a duty to consider the claim actually raised by the applicant on the materials and evidence presented by him. This involves not simply a separate consideration of each element of claim but the cumulative effect of those elements.[22] A failure to do so falls short of the requirement to review a decision under s.414.
[22] Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [7].
The Tribunal did consider the applicant’s susceptibility to extortion on the basis of his ethnicity and susceptibility to false accusations of separatist links.[23] A consideration of the Tribunal’s reasons does at first blush suggest that it gave consideration to various aspects of his claim separately and not cumulatively. In other words, treating ethnicity as a separate claim to being a Wealthy Tamil Businessman rather than addressing the combined effect and the basis on which the claim was made. However, I am of the view that read as a whole, the decision of the Tribunal did address, if in a structure that was somewhat infelicitous, the entire claim as advanced by the applicant. I am not satisfied that the Tribunal failed to address part of the applicant’s claim or to take into account a relevant consideration. I dismiss ground one.
Ground two
[23] CB p 224 at [254].
Firstly, as I have already noted, the Tribunal did address the potential for the applicant to be susceptible to extortion because he would be vulnerable to false allegations of links to the LTTE. It also considered country information that in part, advised that as of November 2012, “targeting of wealthy Tamils is known to continue on a small scale in the Eastern provinces.”[24]
[24] CB p 215 at [188].
I am not persuaded by counsel’s submission that because the finding of the applicant’s potential vulnerability to extortion was in an earlier part of its reasons, it did not inform the finding ultimately made by the Tribunal relating to the applicant’s membership of the social group of wealthy Tamil businessmen, or Tamil businessmen. When making its findings under the heading, “The claimed attempts to extort money from the applicant by the CID”, the Tribunal said this:
“I also accept the independent material to the effect that government officials and others engage in extortion and that, while the chance of risk is slight, because of his potential to pay money he does face a real chance of being threatened to make him pay.”[25]
[25] CB p 227 at [299].
The independent material referred to in that paragraph was the country information that dealt with this issue.[26] I have referred to part of its summary of that material above.
[26] CB pp 215 - 216 at [187]-[189].
In that regard, I respectfully agree with the observation of Moore J in Kaur v Minister for Immigration & Multicultural Affairs:[27]
“… there is no reason why the High Court’s censure against overly critical analysis … ought not to apply with equal force to an error said to be manifested in the structure of a decision as it does to the words adopted by the Tribunal.”
[27] [2000] FCA 1401 at [15].
The submission of the applicant is that in this case the question of his ethnicity was inextricably linked to his membership of the social group of wealthy Tamil businessmen, and his consequent vulnerability. In my view, the Tribunal did not make a finding that was inconsistent with this proposition. It accepted that the applicant’s home region remains largely militarised because of the concerns that Tamil separatism may emerge again.[28] On a fair reading, the extortion it referred to at paragraph 299 of its reasons was that type of extortion it had already noted; extortion based on false allegations of separatist links. It also referred in the same paragraph, to the applicant’s potential to pay extortion monies. When the Tribunal turned at paragraph 300 to consider the social group under the heading, “Membership of a particular social group of wealthy Tamil businessmen”, it did so in light of its consideration of the reasons for the applicant being susceptible to extortion mentioned earlier in the decision[29]. I can see no reason to conclude that this part of its reasons should be divorced from the process of reasoning up to that point. The Tribunal did identify and consider the basis of his fear of persecution and the resultant ability of the CID to make false separatist allegations against him in combination with his membership of the social group of wealthy Tamil businessmen. Its finding was that his situation lacked the relevant convention nexus (‘the causative finding’), because any persecution would not be ‘for reasons of’ his ethnicity or falsely imputed political views, but ‘for reasons of’ the fact that his financial capacity to meet extortionate demands made him a target for CID officers seeking pecuniary gain. On the causative finding, his ethnicity and/or political associations were the leverage that might make extortion possible, but not the reason for it. The reason for the extortion was a desire for pecuniary gain which could be satisfied by an affluent target. Accordingly, it reasoned that his susceptibility would be coincidental to the persecution.
[28] CB p 227 at [298].
[29] See CB p 224 at [254].
It is with respect to the causative finding that I am satisfied the Tribunal erred as a matter of law. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs[30] the majority cited with approval the following passage of French J (as he then was) at first instance:
“The majority judgment in Applicant A supports the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted. But although the words “enmity” and “malignity” appear in the dictionary definitions of persecution and in some of the passages in the judgments, they do not mandate a narrow or constricting view of what may constitute the relevant connection between persecution and membership of the group. Motivation connecting persecution to the relevant attribute is sufficient. Persecution may be carried out coolly, efficiently and with no element of personal animus directed at its objects. There are too many historical examples of the inhuman indifference of which governments are sometimes capable in the pursuit of persecutory policies to so narrow the concept. The attribution of subjectively flavoured states such as “enmity” and “malignity” to governments and institutions risks a fictitious personification of the abstract and the impersonal.”
[30] (2000) 170 ALR 553 at [34].
Motivation connecting the persecution of the applicant to his status as a Tamil or wealthy Tamil businessman was sufficient. The Tribunal seems to have proceeded on the basis that the causative aspect had to be the most substantial or sole cause. In that regard, it focused on the motive of the extortionists being for financial gain. But the Tribunal itself had already acknowledged that he would be susceptible to false allegations because he was a Tamil. It was the link between his ethnicity and therefore susceptibility in addition to his ability to pay extortion money that would motivate the CID to target him or other wealthy Tamil businessmen over others. The Tribunal erred as a matter of law in finding that the potential for extortion did not have the relevant convention nexus. It fell into jurisdictional error in doing so.
However, I accept the submission of the first respondent that there was an independent finding which has not been challenged by the applicant, that would render it appropriate to refuse relief. The relocation finding by the Tribunal was open on the facts of the matter. Whilst relief should not lightly be refused when judicial error is established, the grant of constitutional writs is a discretionary matter. In considering the exercise of the discretion to grant constitutional writs, in the context of a matter in which there was another independent basis for the Tribunal’s decision the High Court had this to say:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants.
This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the tribunal’s finding that their claims lacked the requisite Convention nexus.”[31]
[31] SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [29].
In the circumstances, the applicant cannot overcome the finding of the Tribunal as to the relocation. It is appropriate to refuse relief in this matter.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 12 September 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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