BGM15 v Minster for Immigration
[2017] FCCA 1963
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGM15 v MINSTER FOR IMMIGRATION & ANOR | [2017] FCCA 1963 |
| Catchwords: MIGRATION – Application for a review of former Refugee Review Tribunal decision – whether the Tribunal failed to consider all of the applicant’s circumstances – whether the Tribunal failed to consider a claim – whether the decision was irrational or illogical – whether the Tribunal erred in finding there was no actual subjective intention to cause significant harm to the applicant – whether the Tribunal properly considered the issue of relocation – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 476 |
| Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 |
| Applicant: | BGM15 |
| First Respondent: | MINSTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1859 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 April 2017 |
| Date of Last Submission: | 6 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Respondents: | Mr T Galvin of Minter Ellison |
ORDERS
The application made on 3 July 2015 and amended on 26 February 2016 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $6000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1859 of 2015
| BGM15 |
Applicant
And
| MINSTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 July 2015 seeking review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 10 June 2015 which affirmed the decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
On 30 July 2015 the Court made an order, by consent, granting leave to the applicant to file and serve an amended application by 24 September 2015. The applicant filed an amended application after this date, on 26 February 2016. At the final hearing of this matter, on 6 April 2017, the applicant sought to rely on the amended application. The Minister did not oppose this course as no prejudice had been suffered.
In evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the Applicant (“the Court Book” – “CB”, “AE1”.
Background
The Minister’s written submissions filed on 29 March 2017 set out the relevant background to this matter in some detail. I am satisfied, having regard to the evidence before the Court, that they contain a fair summary of the relevant background as follows ([4] – [9] of the Minister’s written submissions):
“[4] The applicant is a Sri Lankan citizen who arrived in Australia on 1 July 2012 as an irregular maritime arrival (Court Book (CB) 45–46). The following day, 2 July 2012, the applicant underwent a biodata interview (CB 2–13) and he was interviewed by an officer of the Minister's department on 7 September 2012 (CB 14–31).
[5] The applicant lodged an application for a protection visa on 21 December 2012 (CB 33–112). In a statutory declaration provided in support of his protection visa application, the applicant claimed that, since 2010, he had 'suffered a lot at the hands of the Tamil paramilitary group EPDP [Eelam People's Democratic Party (EPDP)] who work closely with the Sri Lankan government'. He claimed he lived in the Vavuniya district in Sri Lanka (where he had lived most of his life), where he had been beaten several times by EPDP members whilst travelling to class. As a result, his parents arranged for him to travel to Colombo to live with his uncle and to undertake further study. He claimed that on one occasion he was spotted by 'a few EPDP men who were part of the larger group that used to beat' him and tried to take his money. They said to him 'let us see when you return to Vavuniya'. He stated that '[i]t was not possible to continue to live in Colombo anymore as [he] was sharing a small room with [his] uncle and it was not safe to travel to Vavuniya as [he] knew [he] would be at risk of being harmed by members of the EPDP'. The applicant did not make any other claims to fear harm in the future other than from members of the EPDP.
[6]The applicant attended an interview with an officer of the Minister's department on 2 July 2013 (CB 140). At that interview, the applicant stated that he travelled to Vavuniya on a weekly basis from Colombo and the applicant's representative also asserted that 'country information indicate[d] that failed asylum seekers have been subjected to serious harm and torture on return to Sri Lanka … [and the applicant had a profile that heightened] the risk of harm he may face on return to Sri Lanka' (CB 143 and 146).
[7] On 19 July 2013, a delegate of the Minister (the delegate) refused to grant the applicant a protection visa (CB 139–154). The delegate identified a number of concerns with the credibility of the applicant's account of his experiences in Sri Lanka with the EPDP, and did not accept that he was targeted by the EPDP in Vavuniya or the credibility of his claims generally. In relation to the claim made by the applicant's representative regarding the applicant being a failed asylum seeker, the delegate found that, on the basis of the applicant's profile, it was unlikely that he would be subjected to anything more than administrative screening upon his return to Sri Lanka and there was no more than a remote chance he would be subjected to protracted detention. The delegate therefore found that there was not a real chance or risk that the applicant would suffer serious or significant harm as a failed asylum seeker.
[8] On 23 July 2013, the applicant applied to the Tribunal for review of the delegate's decision (CB 155–160). His representative subsequently provided written submissions to the Tribunal (CB 172–186) and a draft statutory declaration made by the applicant (CB 187–189). In that draft statutory declaration (which was not signed by the applicant) the applicant sought to address concerns raised by the delegate. In particular, it was stated that the applicant did not understand why he was targeted by the EPDP 'but there is a possibility that [he] was the target of extortion because [his] father is a gold-smith' who had two jewellery shops in the area, and that 'there are many cases of where children of wealthy families have been abducted for ransom by EPDP'. The applicant further stated that he 'could not continue living in Colombo because [he] was recognised by EPDP when [he] was standing at a bus stop waiting for the bus'. In the written submissions, the representative claimed that the applicant would be persecuted by the Sri Lankan government and other organisations because of his Tamil ethnicity, because he will be imputed with a political opinion of supporting the LTTE, and because he will be a returned failed asylum seeker from the west.
[9] The applicant appeared before the Tribunal on 6 March 2015 to give evidence and present arguments, and was assisted by his representative and a Tamil interpreter (CB 228–230). A signed copy of the statutory declaration referred to at paragraph 8 was provided to the Tribunal at the hearing.”
The Application to the Court
The grounds of the amended application to the Court are in the following terms:
“Ground 1
1. The Tribunal stated (CB 248; RRT Decision p7 at [28]) ‘... The Tribunal finds it is reasonable for the Applicant to relocate to Colombo.’ The Tribunal committed jurisdictional error made findings by having regard to the entirety of issues and or failing to address all relevant matters in relation to the applicant's circumstances. The erred when it failed to address whether the risk was local and whether the Applicant would be able to avoid such risks.
Particulars
1.1 The evidence relied upon by the Tribunal and discussed to support independent internal relocation, do not support the relocation findings and or do not address at the relevant matters (such as family network) but relies on the Tribunal's finding on country information that EPDP associates only operative only in the north rather than addressing the relevant issues supporting the conclusion.
1.2 The Tribunal has failed to address the Applicant’s claims of fear through out Sri Lanka.
1.3 The Tribunal has failed to address the claims and set out its finds and reasons for the decision.
Ground 2
2. The Tribunal constructively failed to exercise its jurisdiction and fell into jurisdictional error. Alternatively, the Tribunal reasons for affirming decision under review is irrational illogical and is thereby affected by jurisdictional error.
Particulars
2.1 The Tribunal found that the Applicant has been threatened, assaulted and robbed by associates of EPDP a number of times (RRT decision at [18], [21]).
2.2 The claim was that paramilitaries operate through out Sri Lanka. The Applicant claimed that he would be at risk at any location in Sri Lanka. The Tribunal did not address this claim.
2.3 The Tribunal also accepted that the Applicant met one of the EPDP associates (Nerogen) in Colombo (whilst the Applicant was residing in Colombo with one of the uncles for short time (RRT decision at [23]).
2.4 The Tribunal also accepted that the Applicant (Nerogen) threatened and took money from the Applicant when he met the EPDP associates in Colombo (RRT decision at [23]; [25]).
Ground 3
3. The Tribunal’s decision is affected by jurisdictional error when it found that the Applicant can return to Sri Lanka without probative evidence.
Particulars
3.1 The Applicant repeats the particulars of Ground 2.
Ground 4
4.The Tribunal committed jurisdictional error when it failed to take into account that the Applicant's detention in poor prison conditions (CB 254 at [58]; CB 252 at [48]) would constitute persecution complementary protection provisions and thereby applied the wrong test in relation to s 5 and s 36(2A) of the Migration Act 1958. The Tribunal fell into error when it failed to have regard to s 499 and the directions made thereunder regarding detention. Further the failed to address whether the detention would be intentionally inflicted in poor prison conditions and would amount to cruel and/or inhuman treatment.
Particulars
(a) The Tribunal found that the Applicant would be detained but would not constitute serious or significant harm.
(b) The Applicant would be detained for leaving country illegally.
(c) This was a relevant consideration in assessment of whether the Applicant's fear was well founded upon return to Sri Lanka.
(d) The Tribunal addressed and made findings regarding the claims on prison conditions harsh/poor conditions) and whether the conditions breached the relevant statutes and domestic law.
(e) Erred in stating that there was no intention (and was law of general application) by the Sri Lankan government to inflict cruel or inhuman treatment or punishment on the applicant.
(f) Applied wrong test or asked itself wrong questions when it found that the Applicant would not suffer significant harm.
(g) Failed to apply the PAM Guidelines.
(h) The Tribunal applied the wrong test.
Ground 3 (sic)
5. The Tribunal's decision is affected by jurisdictional error when it found that the whilst the Applicant would be arrested and detained upon return to Sri Lanka without putting these matters to the Applicant; the Tribunal has denied the Applicant procedural fairness in presuming that the Applicant would be granted.
Particulars
5.1 The Tribunal did not put to the Applicant his ability to secure bail;
5.2 The Tribunal has presumed that the Applicant would be released on bail without making the appropriate findings.”
[Errors in original. I note that there are two grounds headed “[g]round 3”. In context, the second should be taken to be a reference to “ground 5”.]
At the final hearing (and as seen from his written submissions), the applicant did not press ground three.
The applicant’s first ground contends that the Tribunal erred in its consideration of the applicant’s relocation within Sri Lanka to avoid harm.
The applicant’s ground and submissions directed attention to [28] (at CB 248) of the Tribunal’s decision record as follows:
“The Tribunal has considered the reasonableness of the applicant relocating to Colombo. The Tribunal accepts the applicant’s oral evidence that many different groups, Army and paramilitary, operate throughout Sri Lanka. Nevertheless, the Tribunal notes the applicant claims fear of harm from EPDP members and their associates. As noted above, country information indicates the EPDP operate in the north of the country. The Tribunal does not accept the EPDP or their associates undertake their activities outside the north of the country or in Colombo. The country information noted above indicates many Tamils live in Colombo. The Tribunal notes the applicant has lived there in the past, and whilst the Tribunal has considered the applicant’s concern that relocation to Colombo means he would be living away from his parents, it notes the applicant has two uncles who live in Colombo and the applicant has lived in Colombo for six month in 2012 and travelled to visit his family in Vuvuniya while living there. The Tribunal finds the applicant would not be without familial support if he were to relocate the Colombo. The Tribunal notes the applicant is now 23 years old and has completed his Year 11 and an IT and English course and has work experience in a number of industries. The DFAT Country Report Sri Lanka (16 February 2015) indicates the Sri Lankan economy has been growing since the end of the war, and unemployment continues to fall, although many people in conflict related areas in the north and east remain economically vulnerable. While the DFAT report considers the relatively strong rates of economic growth and formal unemployment statistics mask a broader frustration in Sri Lanka about a lack of economic opportunities, including well paid employment, the Tribunal is satisfied the applicant could find employment and would have familial support through his uncles in Colombo. The Tribunal finds it is reasonable for the applicant to relocate to Colombo. The Tribunal does not accept there is a real chance the applicant will be persecuted or suffer harm of any kind by Nerogen or EPDP members or their associates, outside the north of the country, or in Colombo.”
The applicant’s argument in written submissions was that the Tribunal found that the applicant had been “persecuted” in his home district in the past. That may be accepted (see [28] at CB 248 to CB 249) (see also [21] at CB 247). Given the applicant’s presentation of his claims, a fair reading of [28] (at CB 248 to CB 249) is that the incidents of past harm occurred in his home area (see further below).
The applicant’s written submissions also assert that the Tribunal found that he had previously been “persecuted” in Colombo ([6] of the applicant’s written submissions). The applicant again relies on [28] (at CB 248 to CB 249) for that contention. It must be said that it is difficult to see, given its focus, and what is stated there, that [28] (at CB 248 to CB 249) supports that latter contention.
In any event, the Tribunal did, at [25] (at CB 248), accept that the applicant had encountered a person, known as “Nerogen” in Colombo while living there, and had money taken from him. It appears “Nerogen” was an “associate” of the EPDP or a member of it. However, despite pressing the applicant’s counsel, it was difficult to obtain a clear articulation of the exact legal error alleged. The following was raised in oral submissions by the applicant.
First, the applicant’s oral submissions confirmed that the complaint in ground one was focused on [28] (at CB 248 to CB 249).
Second, the complaint was explained as follows. The “main emphasis” in the Tribunal’s analysis at [28] (at CB 248 to CB 249), was on the fact that the applicant had previously lived with relatives in Colombo. The Tribunal failed to consider at [28] (at CB 248 to CB 249), the entirety of the applicant’s circumstances, and as they related to the issue of relocation. In essence, the Tribunal relied generally on country information, that the Tribunal understood to say that the EPDP and its associates operated only in the north of Sri Lanka, and did not undertake activities outside of the north, or in Colombo.
Third, at [12] of his written submissions, the applicant stated:
“The Tribunal has failed to identify and deal with the issue in circumstances where the claims that the Applicant were advancing was confined and localised (cf: Randhawa v MILGEA (1994) 52 FCR 437 at 443; SZFDV v MIAC [2007] HCA 41 at [25]; SZAVT v MIMA at [95]) and that the relocation was relevant and then decision practical in all the circumstances. The Tribunal has not addressed whether any risk of harm is localised.”
[Errors in original.]
There appear to be three elements for immediate consideration.
First, when asked by the Court to explain [12] of the applicant’s written submissions, the applicant’s counsel stated that the issue of relocation was not raised by the delegate and that the issue of relocation became a “live issue” before the Tribunal. Further, the applicant was not “fully on notice” that the issue of relocation was one of the bases on which the affirmation of the delegate’s decision would turn.
Counsel further submitted that the Tribunal failed to make a clear finding on local harm in circumstances where the applicant “could not stay” in his local area, but proceeded to consider relocation.
There is no transcript of the Tribunal hearing in evidence before the Court. The only evidence of what occurred at the hearing is the Tribunal’s references to it in its decision record.
As was made clear in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) (at [35] - [37]), the purpose of inviting an applicant to a hearing pursuant to s.425 of the Act is to give the applicant the opportunity to give evidence and make arguments in relation to the issues dispositive, or determinative, of the review.
The applicant is entitled to assume that if an issue was not a live issue as a result of the delegate’s decision, and was not raised at the hearing, then any such issue would not be an issue in the review. If the Tribunal fails to raise any issue on which it subsequently relies at the hearing, the applicant has been denied a fair hearing.
It is difficult to see how this matter can be said to arise from the terms of ground one. In any event, the evidence before the Court reveals that the issue of relocation was raised at the hearing (see [24] at CB 247 to CB 248).
The second element arising from the applicant’s submissions on the issue of relocation was the claim that the Tribunal did not make a finding on “local harm” before considering relocation.
The third element is that the Tribunal failed to consider the question of relocation in the manner explained in the relevant authorities (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 (“SZATV”), SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51 and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535; (1994) 52 FCR 437).
I agree with the applicant that at least on its face, the Tribunal does not make any express finding that the fear of harm is localised to his home area.
The Minister sought to address this situation by submitting, in effect, that the Tribunal’s decision should be read holistically, and in the context of the way the applicant’s claims were presented. That is, a fair reading of the decision.
The Minister submitted that the applicant claimed to have suffered incidents of past harm in his local area. The Tribunal set these out at [5] (at CB 244) to [11] (at CB 245) of its decision record. The Minister relied on the Tribunal’s finding at [12] (at CB 245), that the applicant’s family sent him to Colombo “due to these incidents”. That is, that up to that point of the Tribunal’s analysis, the claims of harm were focused on the applicant’s local area.
The applicant only advanced one claim of past harm in Colombo. On the evidence, this appears to be the incident relating to “Nerogen”. The Minister argued in oral submissions that the Tribunal dealt with this incident “differently” to the claims of harm in his local area.
In this light, the Minister submitted that the Tribunal’s finding at [21] (at CB 247) can be distinguished from what it stated at [23] (at CB 247). At [21] (at CB 247) the Tribunal stated:
“As noted above the Tribunal accepts that the applicant has been threatened, assaulted and robbed by member (sic) and associates of the EPDP a number of times. The Tribunal also accepts the harm the applicant fears from these people amounts to serious harm.”
That is, the Minister submitted that at [21] (at CB 247), the Tribunal made a finding in relation to the claims in his local area. At [23] (at CB 247), the Tribunal focused on the situation in Colombo, and then at [25] (at CB 248), it focused on the one event involving “Nerogen”. The Tribunal accepted that the “Nerogen” incident had occurred (noting that at [24] (at CB 247 to CB 248) the Tribunal made clear it raised the issue of relocation at the hearing).
The Minister submitted that in relation to the incident in Colombo, the Tribunal found that the applicant did not see “Nerogen” during the time he remained in Colombo to study, and there was nothing to suggest that the EPDP were interested in his family.
Further, at [26] (at CB 248) the Tribunal took into account country information that the EPDP only operated in the north. There was no information to indicate they operated in Colombo. The Tribunal found that the incident in Colombo was “random”.
In all therefore, the Minister submitted the Tribunal’s approach was to find that the applicant had a well-founded fear of harm in his local area, then turned to consider whether the applicant could safely relocate to Colombo, and then ultimately, whether it was reasonable and practicable for the applicant to do so.
It must be said that there are some difficulties with the presentation of the Tribunal’s reasoning. This raises the question as to whether there is such ambiguity in the decision record, that the Minister’s argument that the decision is to be read fairly, is not available to the Minister (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]).
First, the Tribunal made no express finding that the risk of serious harm which it accepted applied to the applicant, was localised (see [21] at CB 247).
Second, the key finding made by the Tribunal at [21] (at CB 247) is said to be based on what it previously set out in its decision record, that is, “[a]s noted above”. The Minister submits that what was noted above, were the incidents of past harm, which were all “local” events.
The difficulty for the Minister is that, included in what was “noted above”, was the Tribunal’s recording of the applicant’s claim that ([12] at CB 245):
“…he could not live in Colombo because he was recognised by the EPDP when he was standing at a bus stop because of his familiar face as he had lived in an EPDP area”.
Further, at [13] (at CB 245 to CB 246) the Tribunal recorded the applicant’s evidence given at the hearing before it, that he feared for his life if he were to return to Sri Lanka because he may be “assaulted”, “bashed” or “killed” by the “EPDP members and their associates”.
The applicant’s claims in evidence, as recorded by the Tribunal in its decision record, even when read fairly, were to the effect that he feared harm from the EPDP in all of Sri Lanka, including Colombo, and that he had been recognised while standing at a bus stop in Colombo by the EPDP (presumably a member or members of it), which caused him to further fear harm in Colombo.
With reference to [21] (at CB 247) in particular, this immediately raises the question as to what temporal and locational context the Tribunal was referring to when it said it accepted that the applicant had been “threatened, assaulted and robbed” by the EPDP “a number of times”. That is, was the resultant finding that the harm feared from these people was “serious harm”, confined to the applicant’s local area. The Tribunal makes no specific reference at [21] (at CB 247) to limiting that finding to the applicant’s local area.
The Minister did not dispute that at [21] (at CB 247) of its decision record, the Tribunal made no specific reference to the applicant’s local area. However, the Minister argued that when read fairly, and in context, that is what the Tribunal meant.
Given the reference to “[a]s noted above” which when fairly read, must include what the Tribunal “noted above” at [12] (at CB 245) and [13] (at CB 245 to CB 246), then it is at least reasonably arguable that that finding either ignored the applicant’s claims as they related to Colombo, or included those claims. I note in this context that [12] (at CB 245) and [13] (at CB 245 to CB 246) are set out by the Tribunal under the heading of “Consideration of claims and evidence”.
The Tribunal’s findings at [21] (at CB 247) of its decision record are ambiguous when read in the context of what precedes it. That is, as to whether the finding in relation to the serious harm the applicant fears applied to all of the country or just the applicant’s local area.
A fair reading does not include reading into a Tribunal decision record, findings that should have been made, but were not made. The Tribunal is required to make clear findings so as to avoid such ambiguity.
However, the Tribunal set out its consideration of the question of relocation immediately following [21] (at CB 247). There is, on balance, argument to say that fairly, and implicitly, [21] (at CB 247) can be read as containing findings limited to the north of Sri Lanka and not Colombo.
For the reasons that follow, and on balance, I am persuaded that what the Tribunal found at [21] (at CB 247) was limited to the north of Sri Lanka. This is because, when the Tribunal later came to set out its findings on relocation, amongst other things, and in part, it specifically focused on past events of claimed harm in Colombo.
The Tribunal referred to the applicant’s evidence he gave concerning “Nerogen” at the hearing. The Tribunal’s report of the applicant’s evidence is as follows ([23] at CB 247):
“…The applicant told the Tribunal that in May 2012 he was on his way to class when he met one of the people (Nerogen) who used to threatened and assault and rob him. This person was with a number of other people the applicant did not recognise. The applicant told the Tribunal Nerogen told him, ‘OK you are studying here, so finish it and after you finish your studies come back and we will see’.”
The Tribunal’s reference to what it had set out “as noted above” (at [21] (at CB 247) and with reference to [12] (at CB 245)) must be seen in light of what the delegate relevantly reported of the applicant’s statements to the delegate at the interview (CB 142.9):
“One day, while waiting at a bus-stop in Colombo, the applicant was spotted by a few EPDP members who were part of the larger group that used to beat him in Vavuniya. The EPDP members asked the applicant for his address in Colombo and forcibly took the money from his wallet. They told the applicant words to the effect ‘let us see when you return to Vavuniya’.”
In this light what the Tribunal set out at [12] (at CB 245) (and by extension, [13] (at CB 245 to CB 246) of its decision record, when read fairly, was a reference to the applicant’s claim to fear harm as expressed to the delegate.
“Nerogen” is not mentioned in the delegate’s report of what was said at the interview, and therefore not mentioned at [12] (at CB 245) by the Tribunal. This is because, when read fairly, the Tribunal’s decision record reveals that the identity of one of the people in the group of EPDP persons who approached the applicant in Colombo while he was at a bus stop was stated by the applicant, for the first time at the Tribunal hearing, to be “Nerogen”.
Plainly, what is set out in the delegate’s decision (at CB 142) and the Tribunal’s decision record (at [12] at CB 245) is the same incident which was said to have occurred in Colombo, which is referred to at [23] (at CB 247) of the Tribunal’s decision record.
Therefore, in this light, when the Tribunal’s decision is read fairly (as a whole), and in the context of how the applicant’s claims were presented during the process of the application for the protection visa, and the Tribunal’s subsequent review, the seeming ambiguity at [21] (at CB 247) of the decision record is resolved.
That is, on a fair reading, and when read in context, at [21] (at CB 247) the Tribunal’s finding as to “serious harm” was limited to the applicant’s local area, being the north of Sri Lanka.
This then leaves the complaint raised in the ground as pleaded. That complaint is that the Tribunal, in its consideration of the applicant’s relocation to Colombo, failed to consider all of the applicant’s circumstances. In particular, that the Tribunal simply relied on a finding (based on country information), that the EPDP only operated in the north of Sri Lanka, and did not take into account such “relevant issues” as the applicant’s family support and whether he would be able to avoid harm by relocating to Colombo.
On finding that the applicant would suffer harm in his local area, the Tribunal’s relevant obligation was to then consider whether there was somewhere else in Sri Lanka where there was no real risk of the applicant suffering similar harm, to which the applicant could relocate. If such a place were to be proposed, the Tribunal was obliged to consider whether it was reasonable or practicable, for the applicant to relocate to that area (SZATV). The Tribunal was then required to address all of the applicant’s objections to relocation (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
The Tribunal found, based on country information before it, that the EPDP and its associates only operated in the north of Sri Lanka and did not operate in Colombo. This was reasonably open to the Tribunal on what was before it.
The applicant takes issue with this finding. He appears to submit that the Tribunal applied a “more likely than not test” rather than the relevant test. The reason for this is said to be because the applicant had suffered harm in Colombo at the hands of the EPDP, and in particular, at the hands of “Nerogen”.
However, the Tribunal specifically considered the “Nerogen” incident. It found that it was the only incident of claimed harm in the six months the applicant had lived in Colombo in 2012. Further, it found that the applicant did not see “Nerogen” again, in circumstances where he continued to live and study in Colombo. The Tribunal also found, on the evidence, that there was nothing to suggest that the EPDP was interested in the applicant’s family, noting that there had only been one approach to his brothers by the EPDP asking about the applicant’s whereabouts (see [25] at CB 248).
In the circumstances, the Tribunal found, that the incident with Nerogen was “a random incident” in a city of over 600,000 people ([26] at CB 248).
Further, the Tribunal found that neither “Nerogen”, nor the EPDP were actively searching for the applicant, and that the EPDP or their associates did not conduct activities in the south, including in Colombo ([28] at CB 248 to 249). The Tribunal also found that there was no country information to suggest that the Sri Lankan authorities would tolerate the EPDP conducting its activities outside of the north ([26] at CB 248).
In this light, I agree with the Minister that no legal error is revealed in the Tribunal’s analysis leading to its conclusion that there was no real risk of harm to the applicant in Colombo.
As to the reasonableness of relocation to Colombo, the applicant’s objections to relocation, on the evidence before the Court, are those reported by the Tribunal to have been advanced by the applicant at the hearing. These were that he would have to live away from his parents and family and that, in any event, he could not avoid harm from the many different groups, both army, and paramilitaries, that operated in Sri Lanka, which was a small country ([24] at CB 247 to CB 248).
The Tribunal considered all of the applicant’s objections. It found that he would not be without some family support in Colombo given that he had two uncles living there. Further, the Tribunal also considered that the applicant had also previously lived there in 2012 ([28] at CB 248 to CB 249).
As to the groups from which he said he feared harm, the Tribunal found that the EPDP did not operate in Colombo, and did not undertake activities outside of the north ([26] at CB 248). Contrary to the applicant’s assertions now, the Tribunal did consider the applicant’s claim to fear harm from the EPDP and its associates in Colombo.
The Tribunal also considered his work and educational circumstances in the context of relocation. It found that in light of his educational situation and work history, the applicant would find work in Colombo ([28] at CB 248 to CB 249). In all, there is no error in the Tribunal’s consideration of the reasonableness of relocation.
It was not clear from the applicant’s submissions whether he also complained that the Tribunal should have made further enquiries of the applicant’s circumstances.
If this was a part of the applicant’s complaint, it does not reveal jurisdictional error on the part of the Tribunal. The applicant was unable to show before the Court, that the Tribunal was obliged to make its own further enquiries about the reasonableness or practicability of relocation, beyond what arose on what the applicant put to the Tribunal (SZMZV v Minister for Immigration and Citizenship [2009] FCA 1380; (2009) 112 ALD 323 and MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; (2012) 206 FCR 191).
In all, ground one is not made out.
Ground two asserts that the Tribunal’s decision was irrational or illogical as it arose from the Tribunal’s consideration of relocation. The particulars explain that the Tribunal found that the applicant had been harmed by the EPDP a number of times. The Tribunal did not then address the applicant’s claim that the paramilitaries (like the EPDP), operate throughout Sri Lanka.
Further, the Tribunal accepted that the applicant “met Nerogen” (an EPDP associate) in Colombo, and accepted that “Nerogen” took money from the applicant.
There are two elements that emerge from this. One, the Tribunal failed to consider a claim made by the applicant that he feared harm from paramilitaries and their associates who operate throughout Sri Lanka. Two, that the Tribunal’s decision was therefore illogical or irrational.
These assertions are not made out on the evidence before the Court. The Tribunal noted, and did consider, the applicant’s claim to fear paramilitaries throughout Sri Lanka as that claim was ultimately put to it.
The applicant claimed to fear harm from the EPDP and its associates (including “Nerogen”) throughout Sri Lanka. The Tribunal considered that claim. The Tribunal “accepted” that the applicant would face harm from the EPDP and its associates in the north of Sri Lanka. This included the applicant’s home area ([21] – [22] at CB 247 and see above at [45]).
The Tribunal then turned to consider the risk of harm from the EPDP and its associates in the remainder of Sri Lanka, with specific reference to Colombo. As set out above, the Tribunal found that the risk of harm in the remainder of Sri Lanka was remote because the EPDP and its associates only operated in the north of Sri Lanka, and the Sri Lankan authorities would not tolerate them operating elsewhere ([24] at CB 247 to [26] at CB 248). This was reasonably open to the Tribunal on what was before it.
Further, in relation to “Nerogen”, as set out above, the Tribunal found the only incident in Colombo raised by the applicant which involved “Nerogen” was a “random” event. The Tribunal noted that the applicant did not see “Nerogen” again and made no other claim to fear harm while he was in Colombo. This also was reasonably open to the Tribunal ([25] - [26] at CB 248).
In his submissions before the Court, the applicant appeared to broaden the scope of those parties from whom harm was said to be feared. The applicant referred generally to “paramilitaries”.
It is important to note what the applicant’s claims were, as presented before the Tribunal. The applicant claimed to fear harm personally from the EPDP, and its associates, because they had harmed him in the past. As set out above, the Tribunal dealt with this.
The applicant also claimed to fear harm because he was of Tamil ethnicity. This fear was said to emanate from the Sri Lankan Army and the paramilitary organisations in general. The applicant’s submissions appear, in this regard, to have overlooked the Tribunal’s consideration at [32] (at CB 249) to [38] (at CB 250) of its decision record. The Tribunal found that the applicant did not have a profile such that he would be at risk of harm because of his Tamil ethnicity, or that he would be imputed with a pro-LTTE political opinion from the Sri Lankan authorities, the army, or paramilitary groups.
I agree with the Minister that the Tribunal’s decision was not one which no rational or logical decision-maker could have made based on the same evidence (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] and see SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [15] per Rares J and [85] per McKerracher J).
Illogicality or irrationality are not revealed simply because the applicant disagrees with the Tribunal’s conclusion, or the antecedent findings that informed it. In all, ground two is not made out.
Ground four, in its terms, and as explained in written submissions, makes a number of complaints. However, in oral submissions before the Court, the applicant explained that this ground was “limit[ed] to the SZTAL argument”.
That is, the applicant asserted that the Tribunal fell into legal error in its consideration of the applicant’s likely detention in poor prison conditions on return to Sri Lanka (because he departed illegally). Specifically, the applicant’s complaint was with the Tribunal’s conclusion that the element of “intention” in the definition of “significant harm”, by the authorities was not present, as it is relevant to the complementary protection criterion.
At [58] (at CB 254) of its decision record, the Tribunal found, relevantly, that on return to Sri Lanka, the applicant may be arrested at the airport because he left Sri Lanka illegally, and “could be placed in remand for a relatively brief period while awaiting a bail hearing.” The Tribunal found that prison conditions in Sri Lanka “are poor”. Amongst other things, it found that on the evidence, there was no “intention” on the part of the “Sri Lankan authorities or anyone to intentionally inflict pain or suffering or intend to cause extreme humiliation on people while in prison” (with reference to some of the elements necessary to establish “significant harm” under relevant definitions in the Act) ([58] at CB 254).
Before the Court, the applicant agreed that his ground could not succeed in light of the Full Federal Court’s judgment in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 (“SZTAL”). However, he submitted that he pressed ground four in this way as a protective measure, given that the High Court has heard and reserved judgment on an appeal from the Full Federal Court judgment in SZTAL.
In short, the relevant definition of “significant harm” in the current case was not satisfied in circumstances where, on the evidence, there was an absence of an “actual subjective intention” to inflict such harm (SZTAL at [59]). For current purposes, this Court is bound by the Full Federal Court’s judgment in SZTAL. Ground four does not succeed.
I note further that in written submissions, the applicant argued that the “intention” of those who would seek to inflict “significant harm” can be made out with reference to whether the authorities “kn[ew] the probable consequences of their acts and omissions” ([61] of the applicant’s written submissions). In light of AIS15 v Minister for Immigration and Border Protection [2016] FCA 978 at [42], this part of the applicant’s argument would not succeed.
Ground five asserts that the Tribunal denied the applicant procedural fairness in circumstances where it found that the applicant would be arrested and detained on return to Sri Lanka, without giving the applicant the opportunity at the hearing to address his ability to secure bail. For example, that a family member would provide security for bail. The Tribunal was said to have simply presumed that he would be granted bail.
The applicant relies on the proposition that the Tribunal was required to put to the applicant at the hearing the “basis” on which it found “that the [a]pplicant would get bail.” He relies on SZBEL at [47] and Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; (2015) 148 ALD 507 (“SZTQS”) per Griffiths J (and at first instance per Judge Emmett).
The applicant’s complaint depends upon what he says was not relevantly put to him at the Tribunal hearing. A difficulty for the applicant is that he has not put a transcript of the Tribunal hearing into evidence before the Court.
In both SZBEL and for that matter, SZTQS on which the applicant now relies, the applicant had put such a transcript into evidence. As the Minister submits, in the current case, it is for the applicant to make out his case on the evidence before the Court, or to provide such evidence in support of his contentions. It is not open to this Court to otherwise assume what may or may not have happened or had been raised at the Tribunal hearing (NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21])
Before the Court, the applicant pressed that the Tribunal made no reference in its decision record to the basis on which it presumed bail would be granted.
It is to be remembered that SZBEL, on which the applicant now relies for ground five, was concerned with the Tribunal’s procedural fairness obligations pursuant to s.425 of the Act. That is, the invitation to a hearing, and the Tribunal’s procedural fairness obligation at the hearing to expose those issues dispositive of the review which were not “live” issues as a result of the delegate’s decision.
In the current case, on the evidence, it cannot be said that the question of a family member’s capacity or willingness to provide surety, either in the form of money or other guarantee, was in issue or even a part of an issue, that was dispositive of the review (see SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 at [76] - [80] and the references there to SZTQS).
In the current case, the Tribunal did not make a positive finding that a member of the applicant’s family would provide surety, such that the applicant would be granted bail. Nor, as the Minister submits, is there anything else before the Court from which an inference could reasonably be drawn that an issue in the review, was whether a family member would be required to provide a surety and (given the applicant’s submissions now), through the payment of money.
The Tribunal’s findings in relation to the question of the likelihood of harm on return to Sri Lanka, relevantly focused on the (brief) period of detention. In all therefore ground five is not made out.
ConclusionNone of the applicant’s grounds reveal jurisdictional error. It is appropriate therefore to dismiss the application. I will make the appropriate order.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 18 August 2017
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