BHV15 v Minister for Immigration

[2016] FCCA 2732

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHV15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2732

Catchwords:
MIGRATION – Judicial review – whether applicant denied procedural fairness – whether error of law by failure to take into account relevant considerations concerning person allegedly owed protection obligations – alleged failure to consider risk of significant harm to failed asylum seeker – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1

Applicant: BHV15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1573 of 2015

Judgment of: Judge McNab

Hearing date: 3 October 2016

Date of Last Submission: 3 October 2016

Delivered at: Melbourne

Delivered on: 3 October 2016

REPRESENTATION

The Applicant in Person

Counsel for the First Respondent: Ms Steiner

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application filed 8 July 2015 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1573 of 2015

BHV15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE

Introduction

1. By way of application filed on 8 July 2015, the applicant seeks judicial review of a decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) dated 12 June 2015, to affirm a decision of a delegate of the First Respondent not to grant him a Protection (Class XA) visa (“the visa”). The applicant appeared before the court unrepresented, but had the assistance of an interpreter from the Tamil language. 

2. The claim to protection made by the applicant was set out in quite lengthy and detailed submissions to the Tribunal prepared by his then-legal representatives, BMA Lawyers.[1] Importantly, those submissions did not include any submission that the applicant was suffering from mental health conditions that may have affected his responses given by him to the delegate or to the Tribunal. The effect is that the Tribunal was not on any notice of any submission that the applicant was suffering from a mental health condition. No evidence was filed in that regard before the Tribunal, or before the delegate. 

   [1] Court Book 167- 212.

Grounds of Review

1. The applicant’s grounds of review to this court are that the decision of the Tribunal was:

   a)affected by an error of law; and

   b)denied the applicant procedural fairness,

   by which I take that it is said that the Tribunal denied the applicant procedural fairness at the hearing. 

2. The second ground, which is simply a statement that:

   I have made an application for assistance through Victorian Legal Aid and am waiting for a decision. 

3. The applicant stated to this court that he had, in fact, made an application for Legal Aid, but had been advised some months ago that they would be unable to provide him with assistance at the hearing before this court. Orders were made by Registrar Luxton on

   
   

   25 November 2015, which included, inter alia, an order that the applicant file and serve by 6 March 2016 any amended application including any additional grounds of review with complete particulars of each ground and any affidavits. 

4. The applicant did not file any amended application setting out any additional grounds, and filed no affidavit material. This is significant, in circumstances where the applicant has appeared before the court on this day raising issues in relation to his mental health at the time of him providing responses to the delegate and appearing before the Tribunal in relation to his mental health. 

5. He said, in submissions made on this day, that since his arrival from

   
   

   Sri Lanka, that he has been mentally unstable; that he has been alone and he has missed his family. He says that he felt oppressed by the Tribunal asking questions in relation to the matters raised by his application and he said that he felt mentally unwell and unable to answer those questions.  He said that:

   Questions about myself, some of the dates may be conflicting …

   and he put this down to his asserted mental health issues. 

6. He did say that he did not tell the Tribunal that he was unwell or that he was unable to answer questions because of his ill health.

   
   

   In circumstances where the applicant has not filed an amended application, and has provided no medical evidence in relation to his medical condition, or mental health condition, and in circumstances where the Tribunal has not been made aware of any issue in relation to his mental health, I do not regard those matters as ones which go to the efficacy of the decision which is under review.

7. The applicant’s submissions set out the applicant’s background, in particular that the applicant is a Sri Lankan of the Tamil race and that he is a Muslim.[2] The subject headings of the matters that he raised are as follows:

   (1)Persecution arising from religion.

   (2)Persecution arising from race.

   (3)Persecution arising from imputed political opinion.

   (4)Persecution arising from membership of a particular social group, being a failed asylum seeker/returnee from the West.

   [2] Court Book 167- 212.

8. The applicant made submissions in relation to comments made by the Tribunal in relation to the applicant’s credibility. The applicant referred to a passage of the Tribunal’s findings in relation to the credibility findings, or questions regarding credibility:

   In particular, given the ongoing nature of the issues faced by the applicant, it is conceivable that he has difficulty remembering all his experiences in Sri Lanka. The fact that the applicant was forced to flee his country to safeguard his life indicates he has suffered torment, given his past experiences. This would clearly affect his ability to recall previous events and articulate his past experiences.[3]

   [3] Court Book 172

The Applicant’s Claims

1. The detail of the applicant’s claims are summarised in the background provided in the first respondent’s outline of submissions, in particular at [3] of those submissions as follows:

   3.On 10 December 2012, the applicant applied for a Protection (Class XA) visa. The applicant’s claims were set out in a statutory declaration accompanying his application.

   3.1The applicant claimed to fear harm in Sri Lanka on the basis of his Tamil Muslim ethnicity, an imputed political opinion of supporting the LTTE for reason that he and his father were suspected of having associations with the LTTE, as a result of his illegal departure from Sri Lanka, and as a failed asylum seeker.

   3.2He claimed that he had suffered discrimination in the past as a young Tamil male and that he had been persecuted as a Sunni Muslim.

   3.3The applicant claimed that, in 2007, his father was involved in running a mosque in Mullaitivu when he found himself trapped in the district due to the closure of the A9 highway. He claimed that his father was subsequently captured by the Sri Lankan Army, detained in a camp in Mullaituvu for five months on suspicion of being involved with the LTTE, and tortured.

   3.4He claimed that, on 10 March 2012 and 30 May 2012, three men came to his house in a white van looking for his father, who he believed to be the CID.

2. The applicant attended a hearing before the Refugee Review Tribunal on 5 February 2015, and following the hearing, on 3 March 2015 the Tribunal received post-hearing submissions from the applicant’s agents, which I have referred to earlier and he was assisted by an interpreter and had legal representation before the Tribunal.

3. The Refugee Review Tribunal accepted that the applicant was a

   
   

   Tamil Muslim, but had significant doubts about the credibility of other aspects of the applicant’s claim, because of inconsistencies and lack of specificity of the evidence provided by the applicant to the Department and the Refugee Review Tribunal. The findings of the Refugee Review Tribunal are accurately summarised in the submissions of the respondent from [11] to [19]. I have reviewed that summary against the decision and, in my view, they are an accurate summary of the findings. They provide:

   11.The RRT accepted that the applicant was a Tamil Muslim. However, the RRT had significant doubts about the credibility of other aspects of the applicant’s claims because of the inconsistencies and lack of specificity of the evidence provided by the applicant to the Department and the RRT (see [79]).

   12.The RRT accepted that the applicant’s father was detained and mistreated by the Sri Lankan army on suspicion of being involved with the LTTE (see [80]). However, the RRT did not accept that the applicant’s father was of any interest to the CID or Sri Lankan authorities, either as a suspected supporter of the LTTE or for any other reason, after being released from detention in 2007 (see [87]).

   13.The RRT was not satisfied that the applicant, as a Tamil Muslim from a home area outside of the Central or Western provinces, faced a real chance of suffering serious harm either at the hands of Sinhalese Buddhist members of the community, or anyone else, because of his religion as a Muslim (see [92]).

   14.The RRT did not accept that the applicant faced a real chance of suffering serious harm at the hands of the Sri Lankan government and security forces if he returned to Sri Lanka solely on account of his ethnicity as a Tamil or as a young Tamil male (see [97]).

   15.The RRT did not accept that the applicant would be imputed with a pro-LTTE or anti-Sri Lankan government political opinion because of his Tamil ethnicity, Muslim religion or because he was a young Tamil male (see [98]). In light of country information, the RRT also did not accept that the applicant would be imputed with an adverse political opinion by the Sri Lankan authorities because he would be identified as a failed asylum seeker (see [101]).

   16.The RRT did not accept that the applicant faced a real chance of suffering serious harm during the detention and questioning that he was likely to face on his return to Sri Lanka, or at any other time after his release from detention because he was identified as a failed asylum seeker, imputed with a pro-LTTE or anti-government political opinion as a Tamil, or for any other reason (see [105]).

   17.The RRT accepted that the applicant departed Sri Lanka illegally (see [107]). However, the RRT found that the Sri Lankan departure laws would be enforced as a law of general application and did not amount to persecution for a Convention reason (see [106]).

   18.The RRT considered the applicant’s claims cumulatively, yet found that the applicant did not meet the criteria for the grant of the visa under section 36(2)(a) of the Act (see [117]).

   19.The RRT went on to consider the applicant’s claims under the complementary protection criterion, and in light of its previous factual findings, concluded that the applicant did not meet the criteria for the grant of the visa under section 36(2)(aa) of the Act (see [120]-[130]).

Conclusion

1. The Tribunal at [6] accurately set out the issues which it had to determine in relation to a suggestion or a ground put forward by the applicant that the decision of the Tribunal is affected by an error of law, those being whether: 

   a)

   the applicant has a well-founded fear of being persecuted in

   
   

   Sri Lanka for reasons of his race, religion, nationality, political opinion, or membership of a particular social group, and, if not; 

   b)whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

2. The Tribunal considered each of the grounds put forward on behalf of the applicant as a basis for overturning the decision of the delegate, and those grounds are accurately set out in the reasons for decision, and are each dealt with by the Tribunal where detailed findings of fact have been made. I can discern no error of law in the reasons provided by the Tribunal. Matters raised by the applicant today in relation to a failure by the Tribunal to accept, as a matter of fact, that he would be persecuted as a Tamil Muslim on his return to Sri Lanka, those matters were considered in detail by the Tribunal. 

3. In particular, the Tribunal stated at [91] of its decision:

   As noted in the DFAT report referred to in appendix 2, there has been a recent rise in religious tensions between Muslims and the Sinhala-speaking Buddhist majority (see 3.22) and there were incidents of violent civil unrest between Buddhists and Muslims in Central Province and Western Province, resulting in the death of three Muslims in June 2014 (see 3.25). However, I also note that the current DFAT assessment, given the relatively low number of incidents of violence, is that the risk of political or religious violence to Muslims in Sri Lanka is low (see 3.28). 

   The DFAT report refers to Muslims facing a moderate level of societal discrimination, giving the example of a 2013 campaign against Halal certification (see 3.26). Considering this, and all the country information before me about the circumstances of Muslims, and Tamil Muslims in particular in Sri Lanka, I find the risk of Muslims in Sri Lanka suffering serious harm in the reasonably foreseeable future because of their religion is remote.  I accept that Muslims in Sri Lanka face a degree of societal discrimination, but I do not accept that the discrimination amounts to any form of serious harm as defined in the Act. 

4. Similarly, the Tribunal considered in detail the submissions and evidence before it in relation to the applicant’s political opinion and membership of a particular social group; the fact that he would be a returnee; and the fact that he departed illegally from Sri Lanka. In these circumstances, I find there is no substance to the applicant’s ground that there was an error of law. The Tribunal made rational findings of fact after considering each of the applicant’s claims. The applicant is fundamentally seeking impermissible merits review.[4]

   [4] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1

5. In relation to the second ground that the applicant was denied procedural fairness by the Tribunal, in my view, having read the decision, it appears that the Tribunal has, in fact, complied with the procedural fairness obligations codified in Div.4 of Part.7 of the Act. The Tribunal complied with the hearing rule codified in s.425 of the Act, and dealt with the issues relevant to the review with the applicant at the hearing on 5 February 2015. The applicant was invited by the Tribunal to comment on inconsistencies in his evidence. Furthermore, the applicant was invited, at the conclusion of the hearing, to make further submissions in relation to matters of credibility, which he did.

Conclusion

1. In those circumstances, I can discern no error in relation to the procedure undertaken by the Tribunal. In these circumstances, I dismiss the application filed on 8 July 2015. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge McNab.

Date: 26 October 2016