BJO15 v Minister for Immigration

[2017] FCCA 3030

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJO15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3030

Catchwords:
MIGRATION – Protection visa – no jurisdictional error apparent – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

SZTAL v Minister for Immigration and Border Protection& Anor [2017] HCA 34

Applicant: BJO15

First Respondent:  MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:   ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1620 of 2015

Judgment of: Judge McNab

Hearing date: 14 November 2017

Date of Last Submission: 14 November 2017

Delivered at: Melbourne

Delivered on: 14 November 2017

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Mr Leerdam, DLA Piper

ORDERS

1. The application filed 15 July 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1620 of 2015

BJO15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns an application filed by the applicant on 15 July 2015, seeking relief in the form of Constitutional writs against a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 25 June 2015.  By that decision, the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection visa.

2. The applicant appeared before the Court with the assistance of an interpreter in the Tamil and English languages.  He did not advance grounds by reiterating certain matters that he had raised before the Tribunal in relation to his claims. 

3. The grounds of the application, as set out in that document, are:

   (1)     The decision of the Tribunal:

   (a)     was affected by an error of law; and  

   (b)     denied the applicant procedural fairness.

4. The claims made by the applicant in support of a Protection visa were set out in a statutory declaration that was made by the applicant prior to interviews with the delegate of the Minister, and he also made claims to the delegate.  Those claims for protection have been accurately set out in the Tribunal’s decision at paragraphs [22] to [30].  In summary, the applicant claims that:

   (a)     In 2003 he was arrested, questioned and beaten by police in relation to an alleged assault and theft at a sporting match in Naval Village.  He was held for one day at the police station.  He was transferred to Negombo jail, where he was held for 14 days in poor conditions and released.  He attended court in 2006 and was acquitted of all charges when the complainant failed to attend court and give evidence.

   (b)     In December 2008, the applicant was on his way to work when he witnessed his cousin, Rahini, being abducted by four men in a white van in Udappu.  He did not recognise the men, but suspects that they were from the Criminal Investigation Division (CID).  He claimed that he felt so helpless that he ran away and that his cousin has not been seen or heard from since.   

   (c) In April 2009, his wife called him and advised him that four or five CID officials came to his house looking for him.

   (d)     In June 2009, he awoke during the night and saw a white van parked in front of his house.  He saw four or five armed CID officials entering through the front gate.  He fled out the back door and ran to a friend’s prawn farm, where he went into hiding.  He did not feel safe in his home, so each day after working as a fisherman, he returned to the prawn farm and hid from the CID throughout the night.

   (e)     His wife told him that CID officials came to his house on two further occasions during 2009 while he was in hiding at the prawn farm.

5. The Tribunal summarised the applicant’s concerns and fears that if he returned to Sri Lanka he will be:

   ·   arrested, interrogated, forced into detention, harmed/ mistreated, tortured and/or killed by the Sri Lankan authorities, including the CID;

   ·   harmed/ mistreated for reasons of his race, be is a Tamil;

   ·   harmed/ mistreated for reasons of his membership of a particular social group:  failed Sri Lankan asylum seekers;

   ·   detained upon arrival and questioned by the Sri Lankan authorities;

   ·   in addition to this, he will be harmed for having departed Sri Lanka illegally and having sought asylum in a Western country;  and

   ·   he fears authorities –  they will not protect him.

6. At paragraphs [31] to [45], the Tribunal summarised the evidence given to the Tribunal in relation to his claims and did so in considerable detail. 

7. The Tribunal assessed the applicant’s claims to be a refugee and in so doing made an assessment of each of the parts of the claims that were made by the applicant in support of his application.  Relevantly, at paragraph [47], the Tribunal accepted that the applicant was arrested and questioned and beaten by police in relation to an alleged assault and theft in 2003. 

8. It also accepted that the applicant was arrested, questioned and beaten by police in relation to an alleged assault and theft, which possibly amounted to serious or significant harm. However, the Tribunal concluded that, as a result of the applicant’s evidence, this incident did not cause him any further problems. The Tribunal found that there was no real chance the applicant would be seriously harmed on account of the incident in 2003 in the reasonably foreseeable future, and any fear of persecution on that basis was not well-founded.

9. In relation to the claims of a fear of persecution arising from having witnessed the abduction, or allegedly witnessing the abduction of his cousin, the Tribunal at paragraph [48] accepted that the applicant’s cousin was abducted in 2008 and the applicant witnessed the abduction. However, the Tribunal found that the applicant had not made a witness statement and had not been put forward as a witness in a complaint that was made to the Human Rights Commission, and had no intention of giving evidence or seeking justice on behalf of his cousin.

10. The Tribunal did not accept that the applicant would be imputed with a political opinion against the Sri Lankan government as a result of witnessing the abduction and found that, in the circumstances, there was not a real chance that the applicant would be seriously harmed in the reasonably foreseeable future on account of having witnessed his cousin’s abduction, and that any fear of persecution on that basis was not well-founded.

11. The Tribunal’s analysis of the implications of witnessing his cousin’s abduction was dealt with in considerable detail in paragraphs [47] to [61] of the Tribunal decision. I can discern no error on the part of the Tribunal in the way that it approached its task. 

12. At paragraph [62] of the decision, the Tribunal considered the applicant’s fear of harm as a Tamil. The Tribunal referred to submissions made to the Tribunal that there was a real chance that the applicant would be persecuted for reasons of his ethnicity as a Tamil.  The Tribunal referred to submissions raising country information relating to the kidnapping of Tamils and the ill-treatment of Tamils in custody.   

13. The Tribunal noted that the applicant had not claimed that he was concerned about Sinhalisation in the area from which he originates, that he was not interred at the end of the war, and he had not claimed that he was seriously harmed in the past because he is a Tamil.

14. The Tribunal did not accept there was a real chance that the applicant in those circumstances would be seriously harmed in the foreseeable future on account of being a Tamil and that any fear of persecution was not well-founded.[1]

    [1] Tribunal decision [23].

15. At paragraph [64] the Tribunal considered claims of fear of persecution arising from perceived links to the LTTE. The Tribunal was not satisfied on the material before it that the applicant’s cousin was abducted because she was suspected of links to the LTTE and the Tribunal found that he is not a member of a family with links to the LTTE.  In those circumstances, the Tribunal found that there was no real chance that the applicant would be seriously harmed in the reasonably foreseeable future on account of having links to the LTTE and that any fear of persecution was not well-founded.

16. At paragraphs [65] to [75] the Tribunal considered the applicant’s position as a failed asylum seeker.  The Tribunal considered country information and at paragraph [70] made reference to country information which indicates that it is those people who are suspected of supporting the LTTE who might be at risk on return.  The Tribunal noted submissions made by the applicant’s representative that cast doubt on the credibility of DFAT reports.  The Tribunal was entitled to consider and make of the country information in the manner it sought fit and accord such weight as it thought it was appropriate to each piece of country information. 

17. The Tribunal held at paragraph [73] that as a failed asylum seeker, if he is identified as such, will be a question on arrival in Sri Lanka, but held that according to the DFAT assessments, the Sri Lankan returnees are treated according to standard procedures regardless of their ethnicity and religion.  The Tribunal concluded at paragraph [25] that there was not a real chance the applicant would be seriously harmed in the reasonably foreseeable future on account of being a failed asylum seeker.

18. The Tribunal considered claims that the applicant would be subjected to serious harm on his return as a result of his illegal departure and did so at paragraphs [77] to [86].  The Tribunal accepted that the applicant committed offences under the Immigrants Act 1948 by leaving Sri Lanka without a valid travel document and acknowledged that the applicant might be prosecuted under that Act.  However the Tribunal did not accept that the evidence available to the Tribunal indicated the applicant would be treated more harshly in relation to those offences for a convention reason or that those laws would be discriminatorily applied, implemented or enforced against him for convention reasons. The Tribunal was of the view that any harm that the applicant fears would not amount to convention-based persecution.

19. At paragraph [86] the Tribunal found that the applicant did not have a well-founded fear of persecution for a convention reason and that he is not a refugee.  The Tribunal also considered the applicant’s claims in relation to complementary protection and found that there were no substantial grounds for believing that there was a real risk that the applicant would be significantly harmed as a result of his illegal departure from Sri Lanka. 

20. In my view, the Tribunal comprehensively listed the applicant’s claims and dealt with each of those claims in detail. No jurisdictional error is manifested in the reasons for the decision. Otherwise the applicant was accorded procedural fairness. He was invited to attend a hearing as required under s.425 and his claims were discussed with him in the course of the hearing. The Tribunal’s consideration of claims in relation to treatment upon his return to Sri Lanka and the prison conditions were dealt with in paragraphs [96] to [100], that consideration was consonant with Full Court authorities at the time, which authority has been affirmed by the decision of the High Court in SZTAL v Minister for Immigration and Border Protection& Anor [2017] HCA 34 at paragraphs [27], [28] and [29]. For those reasons, I dismiss the application for relief.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 6 December 2017