BHX16 v Minister for Immigration
[2018] FCCA 1890
•13 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHX16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1890 |
| Catchwords: MIGRATION – Judicial Review – Sri Lankan Asylum Seeker – some claims accepted by the Tribunal but findings made that the Applicant not a person who faced a real chance of persecution on his return to Sri Lanka – findings of fact not affected by unreasonableness – no failure to consider claims – application dismissed. |
| Legislation: Migration Act 1958 (Cth) s.476(1) |
| Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Citizenship v Li [2013] CLR 332 |
| Applicant: | BHX16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1125 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 10 July 2018 |
| Date of Last Submission: | 10 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 July 2018 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Nicholson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed 30 May 2016 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1125 of 2016
| BHX16 Applicant |
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This matter comes before the court by way of an application filed on
30 May 2016. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 8 May 2016 to affirm a decision of a delegate of the first respondent not to grant the applicant a Protection (class XA) Visa (‘the Visa’).
The applicant attended before the court with the assistance of a Tamil interpreter. He provided the court with a copy of a document called “My Claims”, which sets out in eight paragraphs the applicant’s claims in relation to this application for judicial review. These claims are set out below at [10]. He also stated that he wanted an adjournment on the basis that he had seen a lawyer in about 2017, and that about two months ago, he was told by the lawyer that he would need more money to run the case. He said that he had spoken to a new lawyer but his new lawyer needed at least six weeks in order to prepare for the hearing. He said that he had seen the new lawyer about two months ago.
I refused to grant the adjournment on the basis that the claim has been before the court since May 2015 and was the subject of orders by Registrar Buljan on 9 November 2016. Even accepting that the applicant was told two months ago that the lawyer that he had previously seen could not represent him or would not represent him, he has had sufficient time to engage fresh legal representation.
In my view, there has been sufficient time for the applicant to obtain legal representation since the claim was filed in May 2016. Accordingly, the application was refused.
At the commencement of the hearing, the applicant stated that things remained dangerous for Tamils in Sri Lanka and said that a Tamil had been killed in Colombo the previous day and that he would be in real danger if he returned to Sri Lanka.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 24 June 2012. On 7 December 2012, the applicant applied for the visa and his claims for protection were set out in the accompanying visa application, which is set out at court book pages [126] and [129]. The substance of his claims made at that time are summarised accurately in the outline of submissions filed on behalf of the first respondent at paragraphs 4.1 to 4.6 which are as follows:
4.1.He is a Tamil Hindu from the Mullaitivu District, and a trained goldsmith;
4.2.His mother once ran a catering business in Negambo selling food to people from her home. A Liberation Tigers of Tamil Eelam (LTTE) boy was a customer. In late 2008, the boy stopped frequenting the shop. Two months later, the Criminal Investigation Department (CID) came to the applicant’s house and detained his father for approximately one month;
4.3.In November 2008, he was detained by the CID for two days. The applicant claims that he was interrogated, beaten and forced to confess that he was an LTTE member;
4.4.He visited his father in detention after 45 days. He was told that his father’s detention related to the LTTE member who would come to their house for food. It was claimed that his father knew that the boy was LTTE. The applicant’s father was threatened by the LTTE to provide food to the boy, otherwise he would be shot, or a member of the applicant’s family would be required to serve for the LTTE;
4.5.The applicant’s father was detained from 31 March 2009 to 25 January 2010 in Boossa Detention Camp, and Negambo Prison. He was eventually released with the assistance of the International Red Cross.
4.6.From January 2010 until his departure in June 2012, the applicant, his father, and brothers were questioned, slapped and harassed by the CID in Colombo. The applicant claimed that the last incident was in January 2012 when he and his father returned from a pilgrimage in India.
On 4 February 2014, a delegate of the Minister refused to grant the applicant the visa. Citing relevant country information and the applicant’s undetailed evidence, the Tribunal did not accept that the applicant was suspected of being involved with or have had any connection to the Liberation Tigers of Tamil Eelam (‘LTTE’), nor did the delegate consider that he would face discrimination on return to Sri Lanka such that it would amount to persecution.
On 6 February 2014 the applicant applied to the Refugee Review Tribunal (as it then was) for review of the delegate’s decision. On 5 May 2014 the applicant’s representative provided written submissions to the Tribunal including references to country information, and on 3 September 2015 the applicant was invited to attend a hearing before the Tribunal, which he attended with the assistance of a Tamil interpreter and his representative. On 4 December 2015 following the hearing, written submissions were provided to the Tribunal by the applicant’s representative and on 9 May 2016 the Tribunal affirmed the decision under review.
The grounds of the application filed with the court were that:
i)the decision of the Tribunal has taken into account irrelevant considerations; and
ii)the second respondent erred by failing to consider any integer of the applicant’s claim, namely that he would be targeted because of his situation in Sri Lanka.
The document headed “My Claims” the document provides (with amendments to correct typographical or grammatical errors) as follows:
(1)I am a Sri Lankan Citizen and I arrived to Australia on 24 June 2012.
(2)I made a Visa application on 7 December 2012 which the delegate refused to grant on 4 February 2014.
(3)The Tribunal found that I am not of ongoing interest in Sri Lanka and that I was vague in my responses.
(4)I say that the Tribunal failed to consider integral parts of my claim. I say that I have put my claims in detail, however the Tribunal did not understand my claim.
(5)I have told the Tribunal that I’m unable to return to Sri Lanka due to the following reasons:
(a)My family aided for a person named Jana, who was an LTTE member.
(b)My family was subject to heavy monitoring by the Sri Lankan Authority.
(c)My father was arrested and imprisoned for one year and 10 months on suspicion of supporting the LTTE and as a result, I was also detained for two days in 2008.
(d)My sister was forcefully taken by the LTTE, for which my father had to negotiate and swap my brother for my sister. As a result, my brother was part of the LTTE movement for a period of two years. My father had then also negotiated my brother’s release, subject to our family providing assistance to LTTE members when required.
(e)The person named Jana then visited our family on numerous occasions.
(f)We were not allowed to freely move in Sri Lanka.
(6)I understand the Tribunal’s perspective that the Sri Lankan country information has changed, however, the UNHCR guidelines confirm that there are still people who are subject to persecution, including those with prior links with the LTTE.
(7)I submit that the AAT failed to consider and apply the real chance test, as to whether I would be subject to mistreatment by the Sri Lankan authority.
(8)The Tribunal has erred by applying the wrong test to consider whether I will be subject to ill treatment in the foreseeable future;
(a)I say that merely country reports do not show exactly the true situation in Sri Lanka;
(b)My evidence about continuing persecutions of Tamil people in Sri Lanka was not considered and given no weight was given to the same.
I have considered these claims in this application as the grounds for the application for judicial review.
The decision of the Tribunal is lengthy, and in my view, did take into account each of the applicant’s claims, including the claims that he has set out in the document headed “My Claims”.
The claims were analysed by the Tribunal under headings, first being “Perceived LTTE links”. In relation to this claim, the Tribunal had regard to the applicant’s written claims, oral evidence and post-hearing submissions, as well as relevant country information (see [9]-[18]).
The Tribunal accepted that the applicant’s father was detained for about one year and ten months from September 2008 on suspicion of supporting the LTTE [19]. The Tribunal accepted that the applicant’s father was beaten during his detention. The Tribunal considered that the reason for his release from detention without charge or sentence was because he was not considered to be an LTTE suspect [20]. The Tribunal was of the view that the authorities considered that the applicant’s father had provided support to Jana, in terms of feeding him in the past, but nothing more [20].
At [20] the Tribunal also accepted that the applicant was detained for about two days in November 2008 and questioned and beaten by Criminal Investigation Department (‘CID’) officers in relation to his father, Jana and suspected LTTE links. The Tribunal considered that because the authorities released the applicant after only two days that that indicated that they did not consider him a suspect.
At [10], the Tribunal set out the applicant’s claims in relation to his sister being forcibly taken by the LTTE and the negotiation of her release.
The Tribunal accepted that the applicant and his father had undertaken a pilgrimage to India in December 2011, and this was organised by a company [21]. The Tribunal’s view was that neither the applicant nor his father was of particular interest to the authorities at that time, or that there was any real consequences for his father having left the Negombo area. This goes to the question of whether the applicant was able to move freely in Sri Lanka.
At [22] and [23] of the decision, the Tribunal considered the applicant’s claims about ongoing harassment and questioning from authorities after his father was released from prison in July 2010. The Tribunal found that the applicant’s oral evidence about aspects of his claim of ongoing interest by the CID after his father’s release from prison to be vague and lacking in detail. By way of example, the Tribunal stated that he told the Tribunal that in the period when his father was released from prison in July 2010 to the time he left in Sri Lanka in July 2012, the CID would come and go regularly to their house in a total of a four or five times, and that during those times, the father was beaten two or three times, his brother once and himself twice, yet he did not provide any particular details or context in relation to those incidents.
Having regard to the fact that the Tribunal did not consider that the applicant’s father was a LTTE suspect on release from prison, the Tribunal did not accept the applicant’s claims to have been questioned and harassed and beaten by the CID a number of times from July 2010 to July 2012. Similarly, it did not accept that the applicant’s father or brother were harassed, questioned or beaten in this period. Inconsistencies in relation to claims were also referred to in the Tribunal’s decision at [23].
The Tribunal did accept that the applicant’s father was detained for almost two years from September 2008 and suspected of being an LTTE member and beaten during his imprisonment. However, following his release the Tribunal did not accept that he was of ongoing adverse interest to the authorities at [24].
At [24] the Tribunal referred to country information which indicates that since the end of the war the focus of the Sri Lankan government’s concern has changed and they are now, “…interested in those who are perceived to be a threat to the integrity of Sri Lanka as a single state, and are perceived to have a significant role in relation to post‑war separatism, and a renewal of hostilities within Sri Lanka.”
The Tribunal also noted that nothing has happened to the applicant’s siblings who remain in Sri Lanka, including his brother, who he said has remained living in Negombo and works in Colombo as a jeweller.
At [25] the Tribunal referred to the applicant’s claims that his brother, Kunasekaran was an ex LTTE member. The Tribunal noted that the applicant had failed to mention that his brother was an LTTE member in his written claims to the Department. The Tribunal was willing to accept that he was an LTTE member, noting that it was common practice for the LTTE to recruit at least one family member from Tamil countries in these areas during this time, but the Tribunal stated:
However, this took place over 13 years ago, and on the applicant’s own evidence that he did not experience any problems from the authorities as a result of his brother’s LTTE membership in the past in Sri Lanka.
The Tribunal found that the chance of the applicant facing serious harm at the hands of the authorities, on the basis of being imputed with pro LTTE political opinion, because of his brother’s LTTE membership in the past to be remote.
At [27] the Tribunal also considered the position of the applicant’s brother-in-law, who works as a jeweller in Batticaloa. The Tribunal stated that it accepted that the applicant’s brother-in-law may have been rounded up along with other Tamils from this area in the past when a crime occurred and questioned by the police as claimed, but noted that on the applicant’s own evidence he was released after questioning, and the Tribunal did not consider that he was specifically targeted.
At [28] the Tribunal, in making concluding remarks in relation to the topic of LTTE involvement, was of the view that the applicant may have been questioned about possible links to LTTE and ill-treated by authorities for a brief period in November 2008, and that there were links to the LTTE in relation to his father.
The Tribunal found that there was a remote chance that the applicant would be seriously harmed on return to Sri Lanka by the authorities, on the basis of an imputed political opinion, because he was questioned and mistreated by the CID over a two-day period in 2008, or because his father was detained by the authorities for almost two years from 2010, or because his mother was an LTTE member, or because his brother-in-law had been questioned by police in the past, or for any other reason on his return to Sri Lanka now, or in the reasonably foreseeable future.
In relation to the applicant’s claims that the Tribunal failed to consider the real chance test,[1] the representative of the first respondent referred the court to the Tribunal’s decision at [28], [35] and [60], where in each of those paragraphs the Tribunal made specific reference to consideration as to whether there was a real chance of serious or significant harm by making specific findings that the chance of serious or significant harm was remote.
[1] see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Tamil Ethnicity
At [30] the Tribunal found that after having regard to relevant country information, and the submissions filed on behalf of the applicant, the applicant’s claim to fear harm on return to Sri Lanka because of his Tamil ethnicity, or that he will be imputed with pro LTTE political opinions, solely because he was Tamil, was not well founded.
At [31] the Tribunal referred to country information submitted on behalf of the applicant which put that in the past, Tamils were said to experience wide-spread discrimination and harm, particularly during the conflict between the LTTE and the Sri Lankan government. But the Tribunal did not accept that simply being a Tamil, or a young Tamil male, gave rise to a well-founded fear of persecution from the authorities in Sri Lanka, or that it would be assumed that all Tamils living in the north or east of Sri Lanka were connected to the LTTE.
The Tribunal referred to independent sources, including a DFAT country report on Sri Lanka, dated 18 December 2015. At [33] the Tribunal did accept that there had been degrees of harassment, discrimination, and in some cases persecution during the time of the conflict between the LTTE and Sri Lankan authorities on account of their ethnicity. However, it found that in light of the war ending in May 2009 that the applicant did not face a real chance of suffering serious harm solely on account of his Tamil ethnicity from the Sinhalese majority nor the Sri Lankan authorities, nor in combination with what the Tribunal accepts in respect of the applicant’s imputed political opinion.
The Tribunal made reference at [35] to the applicant stating to the Tribunal that in 2005 his parents and sisters stayed in a camp in a government-controlled area about one kilometre away from Kaluvanchchikudi near Mullaitivu village because of fighting between government and the LTTE in the LTTE controlled areas of the Batticaloa district.
The Tribunal accepted the applicant’s claims in relation to this, but stated its view that many other Tamil families had been displaced by the conflict during this period, and it found that it was remote the chance that the applicant could be imputed with a pro LTTE political opinion on this basis.
In relation to a claim that the applicant will face harm on return because he was told to stay in Negombo, yet he did not, the Tribunal noted that his family had been told to stay in Negombo, but had moved to Batticaloa in 2014 with no apparent repercussions.
The Tribunal also referred to the fact that the applicant and his father had travelled to India in late 2011 and returned in early 2012 without problems.
The Tribunal also considered the applicant’s claim to face harm because he was perceived to be wealthy as a result of his employment as a Tamil jeweller. The Tribunal did not accept that the applicant would be perceived as being wealthy on his return.
The Tribunal also considered the applicant’s position as a failed asylum seeker. For the reasons set out at [42] to [46], the Tribunal did not find that the applicant faces a real chance of serious harm from the authorities, or anyone else, on his return to Sri Lanka as a failed asylum seeker.
That claim was considered in detail.
At [48] the Tribunal accepted that when the applicant returns to his home in Batticaloa his arrival will be noted and he may be questioned by the Sri Lankan authorities, but because of the findings made by the Tribunal, it did not accept that he would be a person of interest or targeted for harm because it did not accept that the applicant was wanted by the Sri Lankan authorities or anyone else in his home area on the basis that he is a Tamil who has sought asylum in Australia, a western country, or for any other reason.
The Tribunal considered illegal departure and accepted that the applicant was likely to be charged with an offence under the Immigrants and Emigrants Act 1948, but found that it was a law of general application which did not give rise to persecution under the Refugee Convention.
The Tribunal found that the chance that the applicant would face serious harm during questioning, or any brief period he was held in remand waiting for a bail hearing was remote.[2]
[2] See [49] to [55] of the Tribunal’s decision
The Tribunal also considered whether the applicant would face any harm on his return to Sri Lanka on account of his Hindu religion at [47] and [58], but did not accept that the applicant had a well‑founded fear of persecution from Sinhalese thugs or on account of his Hindu religion.
The Tribunal concluded at [60] to [61] that the applicant did not face a real chance of persecution on return to Sri Lanka for any Refugee Convention reasons in the reasonably foreseeable future, and that his fear of persecution was not well founded. The Tribunal also considered complementary protection at [62] to [66].
Consideration
As stated above, the decision of the Tribunal is lengthy, and has considered each of the claims made by the applicant. The Tribunal was of the view that the applicant was no longer of interest or a suspect to authorities or any former rivals. Each of the matters raised by the applicant in paragraph 5 of his claims was considered by the Tribunal. In relation to the Tribunal’s treatment of country information, it was open for the Tribunal to prefer the country information comprised in the DFAT report, and it is apparent that that material was discussed with the applicant in the course of the Tribunal hearing. It is also apparent from the decision that the country information referred to by the applicant was also considered by the Tribunal.
The Tribunal did consider and apply the “real chance” test as to whether the applicant would be subjected to significant or serious harm by Sri Lankan authorities on his return, and otherwise each of the matters raised by the document “My Claims” has been considered.
I do note that these are factual findings made by the Tribunal in relation to the questions as to whether the applicant faced a real risk of harm because of LTTE connections. Another Tribunal may have differed in its view, particularly given the Tribunal accepted the claims that a number of members of the applicant’s family were detained and questioned by authorities, and his father was detained for over a year.
However, the Tribunal considered those matters in detail and in my view for the court to substitute or make some other finding, in circumstances where the decision is not attended by any apparent irrationality or unreasonableness, would involve the court to engage in impermissible merits review when the Tribunal has comprehensively canvassed and considered all the claims made by the applicant.[3] The court appreciates that findings of fact are not immune from review, however in this case no error was apparent.
[3] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272
I do not think that the decision of the Tribunal is unreasonable in the case that it lacks evident and intelligible justification[4]. Those matters that the applicant raises were accepted by the Tribunal (links to LTTE) and found to have occurred at a time of conflict. The most significant feature of the decision is that the Tribunal found that the authorities did not continue to regard the applicant or his family as subjects having any involvement in or with the LTTE.
[4] Minister for immigration and Citizenship v Li [2013] 249 CLR 332
For these reasons the court dismisses the application and orders the applicant pay the first respondent’s costs fixed in sum of $5,000.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 13 July 2018
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