BLA15 v Minister for Immigration

[2016] FCCA 3321

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3321

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision not to grant a Protection (Class XA) visa – whether the Tribunal made jurisdictional error by not considering whether applicant had a subjective fear of persecution – whether Tribunal applied or correctly applied the “real chance test” – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 36(2A)

Cases cited:
Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379

Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22;

(1997) 191 CLR 559

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719

VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851

Applicant: BLA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1990 of 2015

Judgment of: Judge Manousaridis

Hearing date: 26 November 2015

Delivered at: Sydney

Delivered on: 21 December 2016

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges of Stephen Hodges Solicitor

Counsel for the Respondents: Ms B Anniwell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1990 of 2015

BLA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a national of Sri Lanka, applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. The applicant’s claims for protection were first set out in a statement that accompanied his application for a Protection visa.[1] According to that statement, in 2001 the applicant began studying at Open University in Kandy. He lived in Uddappu, but attended classes in Colombo and Puttalam. Uddappu was a well-known area where members of the Liberation Tigers of Tamil Eelam (LTTE) kept weapons.

   [1] CB22-26

2. During his travel to and from classes, the applicant was stopped by police many times. The police asked for details and wrote everything down. They often took a long time, which caused the applicant to miss his classes. The applicant became scared of the police. Some people were taken away when they were stopped, and some of these people were not seen again. The applicant ceased his studies.

3. In 2004, when peace came, the applicant resumed his studies. One morning in May 2004, the police arrested the applicant and obtained details of his address and asked where he was from. Three days later, the police came to the applicant’s house to check whether he was living there. The applicant then gave up his studies.

4. The applicant went to Dubai in 2006. He travelled there on a visitor visa, but he was able to find work. He stayed there for one year. Three months after he returned to Sri Lanka, the applicant again went to Dubai, this time under a working visa. He stayed in Dubai until June 2012.

5. While working in Dubai, the applicant visited Sri Lanka three times. Each time he returned to Sri Lanka, he was stopped at the airport and asked to provide details of his addresses in Sri Lanka and in Dubai. The applicant was also asked whether, while in Dubai, the applicant gave money to the Tiger collection. Although the applicant said he had not given money, he was scared because many people were taken away and tortured.

6. In June 2008, on his return from England, the applicant’s cousin was asked the same questions, and detained for one and a half months. He was stripped and beaten when in detention, and was released after the applicant’s cousin’s mother paid “two lakhs”. Three months after his release, the applicant’s cousin was kidnapped at night from his house.

7. After his cousin was kidnapped, the applicant went to stay in Dubai because it was safer for him. The applicant returned to Sri Lanka to get married and also for an operation that was performed on his child. The applicant last returned to Sri Lanka on 5 June 2012.

8. In the evening of 10 June 2012, two people stopped the applicant on the road and, after the applicant answered to his name, the men asked the applicant to get into their van. The men said they were from the CID (Criminal Investigation Department), and they asked the applicant to go to Chilaw. The applicant thought they meant the police station at Chilaw, so he took the bus the following day to that police station. As the applicant was heading towards the police station, he received a telephone call and was asked to go to the hospital junction. The applicant went to the junction and approached a parked car in which there were two men. The two men told the applicant to get into the back seat.

9. The two men took the applicant to a house and questioned him. They accused him of giving money to the LTTE when he worked in Dubai. The men asked for money to release the applicant. The applicant agreed to give 75,000 rupees. The two men agreed to release him on the faith of his promise he would pay them the following day. They told the applicant they would telephone him the following day.

10. The applicant did not have the money. He decided to leave Sri Lanka because he was afraid the two men would continue to ask for money which he did not have, and that they would take him away and torture him like his cousin. The applicant claimed that if he returned to Sri Lanka he would be arrested and forced to pay large amounts of money to the police because he is a Tamil. He also claimed he fears “being tortured or killed because that happens all the time to Tamils”.[2]

    [2] CB25, [30]

The Tribunal’s decision

1. The Tribunal accepted the applicant was stopped and questioned a number of times by police and the CID undertaking routine security checks, and that the applicant’s home was visited once to check if he lived at that address, and the accuracy of his identification details.[3] The Tribunal found, however, that these were routine security checks, and that the applicant was never arrested.[4]

   [3] CB162, [23]

   [4] CB162, [23]

2. The Tribunal made the following findings:

   a)The applicant went to Dubai in 2006 to find work, that he used his own passport, and was not then of any ongoing adverse interest to the police or the CID or Sri Lankan authorities.[5]

   b)When in Dubai, the applicant once donated a small sum of money to the LTTE, but consistently told Sri Lankan authorities he made no donations.[6]

   c)Between 2007 and 2012 the applicant visited Sri Lanka a number of times, and was not of any ongoing adverse interest to the police or the CID or any Sri Lankan authority during those visits.[7]

   [5] CB163, [26]

   [6] CB163, [27]

   [7] CB163, [27]

3. The Tribunal, however, did not accept the applicant’s claim about the extortion attempt by the two men (June incident).[8] The Tribunal relied on two matters. The first was that the Tribunal considered that the applicant’s account of the incident he gave to the Tribunal differed from that contained in the statement that accompanied his application for a Protection visa. Before the Tribunal, the applicant said that when the two men took him, he was asked about “the incident at the airport”,[9] whereas in his statement the applicant did not mention any incident at the airport. Further, in his statement, the applicant said he told the two men he could not pay the 75,000 rupees because the money he had brought back from Dubai was to pay for his daughter’s operation, whereas before the Tribunal the applicant said his daughter’s operation occurred in 2010.[10]

   [8] CB165, [39]

   [9] CB164, [29]

   [10] CB165, [35]

4. The second reason on which the Tribunal relied for not accepting the June incident occurred is it considered the applicant’s evidence about that incident it to be implausible. The Tribunal considered it implausible that the applicant returned to Sri Lanka in 2009, 2010, and 2011 without any incident other than being questioned at the airport, yet in 2012, five days after he had arrived and had been questioned at the airport, the June incident occurred.[11] When this concern was put to the applicant, the applicant said his brother paid money at the airport. The Tribunal found that response implausible.[12]

   [11] CB165, [37]

   [12] CB165, [37]

5. During the hearing the applicant said he feared returning to Sri Lanka because, if he returns, he will be put in gaol for 14 days, and if the authorities obtain proof he donated money to the LTTE he could get into a lot of problems.[13] The Tribunal did not accept that everyone who travels to Sri Lanka is put in gaol for 14 days.[14] The Tribunal relied on country information, and on its not accepting the applicant was of any adverse interest to the police, the CID, or any Sri Lankan authority.[15]

   [13] CB166, [42]

   [14] CB166, [44]

   [15] CB166, [45]

6. During the hearing before the Tribunal, the applicant claimed his older brother disappeared in 1998. The Tribunal accepted this, as it did the applicant’s claims that his cousin disappeared in 2008, and that the applicant’s brother had been detained in relation to an erroneous driving offence.[16] The Tribunal did not accept, however, that the applicant’s connection to these family members increased the applicant’s risk of being suspected of having links with the LTTE.[17]

   [16] CB176, [46]

   [17] CB167, [46]

7. The Tribunal also considered whether the applicant’s being a Tamil, and a young Tamil man from a particular area of Sri Lanka, is sufficient to establish a real chance he will be harmed for those reasons.[18] The Tribunal referred to the submissions made by the applicant’s representative before and after the hearing.[19] The Tribunal did not accept that the applicant experienced persecution at the hands of the Sri Lankan military because of his ethnicity and the “imputed opinion that attaches to his racial identity”.[20]

   [18] CB167, [47]

   [19] CB167, [48], [49], [50]

   [20] CB167, [50]

8. The Tribunal accepted that country information indicates that Tamils suffered disproportionately at the hands of the authorities during the civil war that ended in 2009, that there continues to be a large military presence in the Northern Province of Sri Lanka and check points are re-established from time to time. The Tribunal also referred to and accepted the conclusions of a decision of the (United Kingdom) Upper Tribunal[21]decision. That decision noted that the Sri Lankan government’s objective is to identify Tamil activists, that the Sri Lankan authorities are aware that many Sri Lankan Tamils travelled abroad as economic migrants, that everyone in LTTE-dominated areas had some involvement with the LTTE during the civil war, but that the Sri Lankan government’s concern now is not with past membership or sympathy, but with whether a person is a destabilising threat in post conflict Sri Lanka.[22] The Tribunal, therefore, was not satisfied:

   a)the evidence before it established Tamils are at risk of serious harm on the basis of their ethnicity alone, or because they are young males, or young males from a particular part of Sri Lanka;[23]

   b)the applicant had any particular profile or imputed profile such that he will suffer serious harm because he is a Tamil, a young Tamil male, or a young Tamil male from a particular area;[24] and

   c)the applicant would be perceived or imputed as having links to the LTTE because he is a Tamil, a young Tamil male, or a young Tamil male from a particular area.[25]

   [21] GJ v Secretary of State for the Home Department (post-civil war; returnees) Sri Lanka CG [2013] UKUT 319 (IAC) which the Tribunal identifies at footnote 1 at CB166

   [22] CB169, [55]

   [23] CB169, [56]

   [24] CB169, [57]

   [25] CB169, [58]

9. The Tribunal then considered whether there is a real chance the applicant will be harmed because of his illegal departure from Sri Lanka, and for escaping and claiming asylum in a western country, or because he is a failed asylum seeker. The Tribunal accepted:

   a)the applicant departed Sri Lankan unlawfully in 2012 in breach of the Immigrants and Emigrants Act (the IE Act);[26]

   b)that country information indicates that up until 2012 there were reports that some Tamils returning to Sri Lanka from the United Kingdom suffered abuse, but these related to persons who had or who were suspected of having connections with the LTTE, or who had criminal connections;[27]

   c)there is a real chance the applicant will come to the attention of the authorities at the airport on return to Sri Lanka, and may be arrested for breaching the IE Act, but did not accept the applicant’s submission that penalties are applied arbitrarily;[28] and

   d)all persons who return to Sri Lanka are screened against an immigration database; returnees are routinely interviewed at the airport by the Immigration and Emigration Department, the State Intelligence Service, and the airport CID, and that returnees who are believed to have left the country in breach of the IE Act are arrested at the airport and brought before a court to apply for bail; and that bail is routinely given and if arrival occurs over a weekend or on a public holiday, the returnee is placed in the remand section of Negombo prison until a bail hearing is available.[29]

   [26] CB170, [62]

   [27] CB170, [62]

   [28] CB170, [63]

   [29] CB170-171, [64]

10. Based on these findings, the Tribunal accepted that, on return to Sri Lanka, there is a real chance the applicant would be arrested at the airport and brought before a magistrate to apply for bail, and if arriving over a weekend or public holiday, he may be held in Negombo Prison for a number of days to await a bail hearing. The Tribunal also found this would be the result of the non-discriminatory enforcement of a law of general application.[30] The Tribunal recognised that prison conditions in Sri Lanka are poor due to overcrowding and unsanitary conditions; but it found the conditions apply to persons in remand generally.[31]

    [30] CB171, [65]

    [31] CB171, [67]

11. The Tribunal also considered the penalties the applicant is likely to face for having left Sri Lanka in breach of the IE Act. Relying on country information, the Tribunal found that, if arrested, the applicant will not be sentenced to imprisonment, and that the chance of his receiving a custodial sentence for illegal departure is remote.[32] Thus, the Tribunal was not satisfied there is a real chance the applicant would suffer serious harm on return to Sri Lanka because of his illegal departure from Sri Lanka, and for being a failed asylum seeker.[33]

    [32] CB172, [69]

    [33] CB172, [70]

12. The Tribunal also did not accept:

    a)the applicant’s representative’s oral submission that the applicant may be perceived as wealthy and persecuted for that reason because he had given money to the LTTE and paid CID members in 2012, and that the applicant’s brother had paid bribes in the past;[34]

    b)the Sri Lankan government’s policies and actions demonstrate a motivation to continue to persecute Tamils generally;[35] or

    c)the newly elected President of Sri Lanka or government intends to pursue policies designed to persecute Tamils.[36]

    [34] CB172, [72]-[73]

    [35] CB173, [74]

    [36] CB173, [75]

13. Although the Tribunal accepted there continues to be a large military presence in the north of Sri Lanka, it also accepted a report prepared by the Department of Foreign Affairs and Trade that monitoring by the military is likely to be acute for high-profile former LTTE members who had been released from rehabilitation or prison, and for those suspected to be planning terrorist or serious criminal acts.[37] The Tribunal also found the applicant did not meet the risk profile identified in the UNHCR Eligibility Guidelines.[38]

    [37] CB173, [76]

    [38] CB173, [76]

14. The Tribunal then considered whether the applicant satisfied the complementary criterion specified in s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). The Tribunal considered, for the reasons it had already given, that there is no real risk the applicant will suffer harm of any kind if he were to return to Sri Lanka. The Tribunal considered whether the treatment the applicant was likely to encounter in prison would amount to “torture” within the meaning of s.5(1) of the Act (“torture” being one of the species of “significant harm” defined in s.36(2A) of the Act). The Tribunal was not satisfied the evidence indicates an intention by Sri Lankan authorities or anyone to intentionally inflict pain or suffering or intend to cause extreme humiliation on people while in prison. For that reason, the Tribunal concluded the applicant’s spending a number of days in prison in Sri Lanka would not amount to “significant harm”.[39]

    [39] CB175, [86]

15. The Tribunal, therefore, found the applicant did not satisfy the criteria stated in s.36(2)(a) or s.36(2)(aa) of the Act.

Grounds of review

1. The applicant relies on the first two of the three grounds set out in the amended application.

Ground 1 – failure to apply test in Guo

1. The first ground is as follows:

   The [Tribunal] committed jurisdictional error by failing to properly analyse and/or make findings about the concept of“well founded fear” as discussed by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

2. In the particulars to this ground, the applicant identifies a number of findings the Tribunal made, and then asserts the following:

   (v)The [Tribunal] failed to address the question whether the applicant had the required state of mind, that is, a fear of being persecuted.

   (vi)The [Tribunal] allowed questions of credibility [to] obscure the task of deciding if the evidence indicates a real ground for the applicant’s fear;

   (vii)It is submitted firstly that the [Tribunal] has not determined that the applicant does not hold fears. Moving on to the second question, it is submitted that on the basis of the facts accepted by the [Tribunal] there were real grounds for the fears;

   (viii)The applicant’s fears were not assumptions but were based on the facts accepted by the [Tribunal].

3. Ground 1 contains three claims. The first is that the Tribunal made a jurisdictional error by failing to consider whether the applicant held a subjective fear of persecution.

4. It is true the Tribunal did not consider, and, therefore, made no finding about whether the applicant in fact feared persecution or harm. That, however, does not mean the Tribunal made a jurisdictional error. That is because the requirement of a having a well-founded fear of persecution within the meaning of Art.1A(2) of the Refugees Convention[40] has two elements, one subjective, and the other objective, both of which must be present. That is, the requirement that there be a “well-founded” fear of being persecuted requires the identification, not only of the reasons for which a person claims he or she has a fear of being persecuted, but also the identification of facts on the basis of which it may be said there are reasons for the person holding that fear, whether or not those reasons are in the mind of the person claiming the fear. That point was made by Dawson J in Chan Yee Kin v Minister for Immigration and Ethnic Affairs:[41]

   Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.

   [40] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

   [41] Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at [16] (Dawson J)

1. Given that “well-founded fear of persecution” requires the joint satisfaction of two elements, a subjective fear, and the presence of an objective basis for that fear, the non-satisfaction of one of those elements necessarily means the requirement of well-founded fear of persecution cannot be made out.

2. In the case before me, the Tribunal considered whether there was an objective basis for the applicant’s having a well-founded fear of persecution. It was not satisfied there was any such objective basis. That necessarily meant the applicant could not establish to the Tribunal’s satisfaction that he had a well-founded fear of persecution. The Tribunal, therefore, made no jurisdictional error by not considering whether the applicant in fact feared persecution.

3. The second claim made in the particulars to ground 1 is that the Tribunal allowed its findings on the applicant’s credibility to “obscure the task of deciding if the evidence indicates a real ground for the applicant’s fear”. It is true the Tribunal relied on its findings, and, in particular, on its not accepting the applicant’s claims concerning the June incident, when assessing whether the applicant had a well-founded fear of persecution or whether the applicant satisfied s.36(2)(aa) of the Act. The Tribunal, however, made no jurisdictional error by relying on those findings. The applicant does not submit the Tribunal was obliged to accept the applicant’s evidence; or that the Tribunal made any jurisdictional error in the manner in which, or on the basis of which, it concluded not to accept the applicant’s evidence. In truth, the applicant’s complaint is that, given those aspects of the applicant’s evidence the Tribunal accepted had occurred – the applicant’s having been stopped and questioned by the police and the CID, the applicant’s cousin having been arrested and released after paying a bribe, and the applicant’s brother’s having disappeared – it was not reasonably open to the Tribunal to conclude the applicant did not have a well-founded fear of persecution. And this is the third of the claims made in the particulars to ground 1.

4. The difficulty with this claim, however, is that it ignores the actual reasoning and evidence on which the Tribunal relied in concluding the applicant did not satisfy s.36(2)(a) or s.36(2)(aa) of the Act. These included the applicant’s departures from and returns to Sri Lanka before 2012 without any incident beyond the applicant’s being subjected to what the Tribunal found to be routine questioning, and the matters on which the Tribunal relied for not accepting the applicant’s evidence about the June incident. Given the Tribunal’s findings in that regard, which are not challenged by the applicant, and given the Tribunal’s reliance on the country information, which also is not challenged by the applicant, it was reasonably open to the Tribunal to conclude, as it did, the applicant did not satisfy s.36(2)(a) or s.36(2)(aa) of the Act.

5. Ground 1, therefore, does not succeed.

Ground 2 – failure to apply “real chance test”

1. The second ground stated in the amended application is that the Tribunal failed to apply the “real chance test” in the sense discussed by Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (emphasis added):[42]

   When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution.

   [42] [1999] FCA 719 at [62]

2. The particulars to ground 2 are as follows:

   (i)Simply identifying inconsistencies between several versions of events, given under pressure and at various dates, for example [29]-[39] is not sufficient reason to discount all of them and there is no appearance at the [Tribunal] considered the possibility that the alleged facts occurred.

   (ii)In finding against the applicant because there was no independent evidence to support the applicant [see for example 44 and elsewhere], the [Tribunal] offended the principle of considering the real chance of the events occurring.

   (iii)The [Tribunal] by its finding in those terms admits there is no evidence to contradict the applicant but nevertheless finds contrary to the applicant’s assertions without considering the real chance.

3. This ground appears to be premised on the view that Rajalingam requires the Tribunal to assess the risk of future harm by reference to its assessment of the probability of past events having occurred or not having occurred. That assumption, however, is incorrect. The principles considered by Sackville J in Rajalingam apply only where the Tribunal  “is uncertain as to whether an alleged event occurred”. These words are taken from the first sentence of the passage from Sackville J’s judgment on which the applicant relies. That the principles his Honour discussed in that judgment apply only to alleged facts about the existence of which the Tribunal is uncertain is confirmed from the following passage from his Honour’s judgment on which the Minister relies (emphasis added):[43]

   In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt” (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued... Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

   [43] [1999] FCA 719 at [67]

4. In my opinion, the Tribunal did not have any doubt about the findings it made in relation to the applicant’s claims about past events. In particular, the Tribunal expressed no doubt, and cannot reasonably be interpreted as having any doubt, in not accepting the applicant was arrested when stopped and questioned by the police and CID during 2001-2004,[44] in not accepting the applicant was stopped by members of the CID and paid them money,[45] or that the applicant was of any ongoing interest to Sri Lankan authorities.[46] The Tribunal, therefore, made no jurisdictional error by assessing the risk of future harm to the applicant without reference to the possibility that these incidents did occur.

   [44] CB162, [23]

   [45] CB165, [38]

   [46] CB165, [38], [45]

5. As is pointed out by the Minister, the Tribunal did raise with the applicant a number of “concerns” it had with aspects of the applicant’s evidence. The Tribunal said it had concerns that the applicant’s evidence before the Tribunal was different from his written claims,[47]and it expressed doubt about the applicant’s credibility and plausibility of his evidence. I accept the Minister’s submission that these references express doubts and concerns “about the [applicant’s] evidence, not about the Tribunal’s satisfaction as to its own findings”.[48]

   [47] CB164, [32], [35]-[38]

   [48] VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 at [20] (Heerey J)

6. Ground 2, therefore, also does not succeed.

Applicant’s written submissions

1. In his written submissions, the applicant submits the Tribunal failed to consider the possibility the applicant might be at risk having regard to the matters identified in paragraph 20 of his written submissions. I do not accept that submission. All the matters the applicant identifies in his written submissions are matters the Tribunal did consider.

Conclusion and disposition

1. The applicant has not succeeded in establishing the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 21 December 2016