Beq16 v Minister for Immigration

[2018] FCCA 2852

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEQ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2852

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – whether the Tribunal failed to consider evidence – whether the Tribunal failed to consider claim – no error by the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476.

Cases cited:

NABE v Minister for Immigration (No 2) [2004] FCAFC 263

Applicant: BEQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1030 of 2016

Judgment of: Judge McNab

Hearing date: 12 June 2018

Date of Last Submission: 12 June 2018

Delivered at: Melbourne

Delivered on: 17 October 2018

REPRESENTATION

Applicant in person

Counsel for the Respondents: Mr J. Maloney

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 17 May 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1030 of 2016

BEQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before the Court by way of application filed 17 May 2016, seeking judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’). This decision, dated 29 April 2016, affirmed a decision of a delegate of the First Respondent to refuse the Applicant a grant of a Protection (Class XA) Visa (‘Visa’).

Background

1. The matter background and Applicant’s claims have been accurately summarised in great detail in the submissions representatives of the First Respondent. Paragraphs [5] – [20] are extracted below with citations omitted and with some minor stylistic changes.

2. The Applicant is a citizen of Sri Lanka and was born in North Western Province on 7 November 1969. The Applicant applied for a Protection visa on 22 August 2013. His application was accompanied by a statutory declaration of the same date, in which he claimed to have a well-founded fear of persecution arising from his support for the Sri Lankan United National Party (UNP).

3. In his statutory declaration, the Applicant claimed that after 1990, he actively assisted with about 10 UNP election campaigns. His activities included canvassing households for votes, setting up stages for political rallies and staffing polling booths as a UNP representative.

4. The Applicant claimed that his difficulties began when the UNP was voted out of power and became an opposition party. After the election in which they lost office, supporters of the winning party came to the Applicant’s village, Thoduwawa. They stood outside his home telling him to come out, and threw rocks at his home. On other occasions, they would verbally abuse the Applicant and his family. The Applicant reported these incidents to police, who took no action.

5. The Applicant further claimed that due to an escalation in these problems around the time of Sri Lanka presidential elections, he decided to go into hiding in Trincomalee, where he lived on a boat for about two months. While the Applicant was away his home was again pelted with rocks while his wife and children were inside.

6. The Applicant also mentioned that his wife had told him that unknown persons had tried to abduct two of his children. The Applicant stated that he subsequently relocated his family from Chillaw to Mihintale, around two months after the election. The Applicant continued to campaign for the UNP and his home there was subsequently again targeted; on one occasion a rock struck him and injured his head. The Applicant subsequently left for Australia, arriving on 24 June 2012.

7. The Applicant further noted that he feared that if returned to Sri Lanka as a failed asylum seeker he may be ‘detained for leaving Sri Lanka illegally. I fear that if I am detained upon return to Sri Lanka, I may be seriously harmed as a result of my political opinion’.

8. Further, the Applicant stated that after his departure, his wife told him that she had received anonymous letters which accused the Applicant of smuggling LTTE-affiliated people to Australia and threatening him and his children.

9. The Applicant concluded by stating that he feared being harmed ‘by members of the UPFA’ and also feared harm from the Sri Lankan authorities ‘who are under the control of the UPFA’.

10. The Applicant also provided three letters in support of his application. The first letter the Applicant claimed was from the UNP. It claimed that the Applicant was a ‘leading member of the United National Party’, and had been persecuted by members and supporters of the rival party; the letter appeared to claim that they had made attempts on his life. The second and third letters were purportedly from priests acquainted with the Applicant. The second letter attested to the Applicant’s active involvement ‘in the then government and its social and economic services of the United National Party (UNP) from 1986 to 2000’. It mentioned the death of one of the Applicant’s children and the Applicant’s being ‘assaulted and threatened with death, in many occasions’, being followed by ‘white vans’ and being unable to obtain police protection. The third letter claimed that the Applicant was a UNP ‘activist…since 1982 to year 2000’. It also drew attention to the death of one of his children

11. On 9 September 2014, the delegate invited the Applicant to attend an interview. On 27 November 2014, the Delegate refused the Applicant’s application.

12. In brief compass: the delegate noted that the Application’s written and oral submissions provided markedly different dates for his family’s move from Chillaw to Mihintale (CB 149). It further noted deficiencies in the Applicant’s evidence of having moved between various places—among them Trincomalee, Matara and Batticaloa— because of threats he faced at home. The delegate concluded that Applicant was travelling to these places to work as a fisherman, not because of any feared harm.

13. The delegate referred to what it considered were shortcomings in the Applicant’s evidence about the UNP, its  concerns about the UNP letter’s authenticity and the general insufficiency of the evidence the delegate was prepared only to accept that the Applicant was a UNP supporter and low level volunteer, not a member or a significant figure within the party.

14. The delegate  noted weaknesses and inconsistencies in the Applicant’s evidence of past harms—for example, his reference to a 2009 example as the most recent incident of harm, juxtaposed with his statement that most of his problems had arisen after 2010; his description of a significant incident not previously referred to; and his changed account of going to Trincomalee. It concluded that it had doubts about his evidence of problems both before and after the 2010 election, and was satisfied that his account of post-election instances of harm had been embellished and partly fabricated. The delegate considered the Applicant’s account of threatening letters sent to his family to be similarly inconsistent and did not accept it. Balancing the Applicant’s claims against country information, the delegate considered the Applicant did not face a real chance of serious harm as a consequence of his political opinion.

15. The delegate further considered the Applicant’s claim that ‘he will be detained harmed [sic] on account of being a failed asylum seeker coupled with his political profile’, and concluded, having regard to country information, that the Applicant did not face serious harm due to his membership of the particular social group ‘failed asylum seeker’.

16. The delegate considered the Applicant’s eligibility for protection against the complementary protection criteria. It did so on the basis of his support of the UNP and his unlawful departure from Sri Lanka, and concluded that he faced no real risk of significant harm.

17. The Applicant subsequently applied to the Tribunal. On 19 February 2016, he was invited to attend a hearing on 5 April 2016; the Applicant did not attend, but the member provided the Applicant with a second opportunity to attend a hearing, which took place on 26 April 2016.

Decision of the Tribunal

1. On 29 April 2016, the Tribunal affirmed the decision of the delegate.

2. The Tribunal considered that the letters provided by the Applicant exaggerated the Applicant’s involvement within the UNP and gave them little weight.[1]

   [1] Court Book 196 [32].

3. The Tribunal accepted that the Applicant was abused and harassed during election-related violence which occurred. However, it did not accept that he was assaulted and found that the mistreatment suffered did not rise to serious or significant harm. The Tribunal further did not accept the Applicant’s claim that he was struck by a rock during an attack at his home in Mihintale. The Tribunal did not accept the claim that the Applicant’s wife received threatening letters.

4. The Tribunal found that the Applicant did not face a real chance or risk of serious harm on the basis of political opinion, having regard to his claims, evidence and relevant country information. The Tribunal also considered whether the Applicant would face a real chance or risk of significant harm upon return to Sri Lanka and found that he would not. On the basis of the totality of the Applicant’s claims, the Tribunal found that he did not face a real chance or risk of serious or significant harm an affirmed the decision of the delegate.

Grounds of review

1. The Applicant provided the following in support of his application for review:

   The AAT erred in not giving consideration to the evidence that the Applicant being myself have been a genuine Protection Visa Applicant who has been having legitimate claims for protection as a result of abuse, threats and assaults suffered in my home country due to my political involvements. I provided evidence in support of this, however the tribunal member disregarded such evidence. The AAT did not give consideration to the evidence provided me at the AAT that upon my return to my home country I would suffer further harm and persecution in the hands of my opponents. Accordingly, AAT failed to give consideration to the evidence as a matter of law. Also the evidence provided by me as on my predicament as a failed asylum seeker has also been disregarded by the tribunal member. Accordingly the tribunal member erred as a matter of law.

Consideration

1. The Tribunal is required to consider claims expressly raised by the Applicant, as well as those squarely arise in the material before the Tribunal, or that arise from the Tribunal’s own findings or conclusions based on material before it: NABE v Minister for Immigration (No 2) [2004] FCAFC 263 [58]. The Applicant contends that the Tribunal failed to have regard to the evidence which related to claims for protection arising from the Applicant’s political involvements and fear of harm upon his return to Sri Lanka as a failed asylum seeker. 

2. In my view, having regard to the Tribunal’s record of decision, the Tribunal considered all the claims made by the Applicant, including whether the Applicant faced a real chance of serious harm on account of being a failed asylum seeker.

3. The reasons of the Tribunal revealed that it considered the Applicant’s claims and in particular his claims arising from political involvement. Those claims were summarised at length throughout the record of decision and letters of support provided by third parties were also considered[2] and referred to at [32]. The Tribunal gave little weight to each of the letters of support and found that those letters exaggerated the Applicant’s involvement in political activity and did not match the Applicant’s own declaration of his role. The Tribunal expressed its reasons for having serious concerns about the credibility of the letters. At [40], the Tribunal made the following conclusion in relation to claims arising from the Applicant’s alleged political involvement:

   The Tribunal has considered all the evidence before it, including the Applicant’s comments, and considers that the Applicant faces no more than a remote chance of serious or significant harm from UFPA supporters because of his political activity in support of the UNP. On the evidence, the Tribunal finds that the Applicant is not a person, who because of his political opinion, will be targeted by anyone for harm. Furthermore, on the basis of independent country information, the Tribunal is satisfied that a person experiencing election -related violence could seek the protection of the state authorities. The Tribunal finds that the Applicant does not face real chance of serious harm, now or in the reasonably foreseeable future, arising from the convention reason of political opinion. The Tribunal finds that the Applicant does not have a well-founded fear of persecution for this reason.

   [2] See Court Book 131 – 133;

4. The Tribunal canvassed at length the Applicant’s claims in relation to political activity, rejected those claims and provided detailed reasons for doing so.

5. In relation to the Applicant’s claim to fear harm if he were returned to Sri Lanka as a failed asylum seeker, the First Respondent submitted that this claim had not been distinctly raised by the Applicant. However, it appears that the Tribunal treated this as a ground and considered the Applicant’s claims that he would be detained unharmed on account of being a failed asylum seeker coupled with his political profile at [40] – [47] and [51] – [54] of the decision.

6. In my view there has been no failure on the part of the Tribunal to consider the Applicant’s claims and accordingly the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 17 October 2018