BLC15 v Minister for Immigration

[2016] FCCA 2708

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLC15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2708

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal considered applicant’s claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.91R(1)(c)

Applicant: BLC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2003 of 2015

Judgment of: Judge Manousaridis

Hearing date: 26 September 2016

Date of Last Submission: 26 September 2016

Delivered at: Sydney

Delivered on: 21 October 2016

REPRESENTATION

Applicant by videolink assisted by an interpreter.

Solicitors for the Respondents:

Mr M Glavac of

Clayton Utz

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2003 of 2015

BLC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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

Claims for protection

1. The applicant is a Tamil, and a Roman Catholic. He married a Singhalese woman in 1998, and, until 2012, when he left Sri Lanka for Australia, he lived in Negombo. The applicant claimed as follows.

2. Before his marriage in 1998 he worked on a fishing boat, but he and the crew were charged by Indian authorities, and gaoled, for illegally fishing in Indian waters. The applicant continued to work as a fisherman after his return to Sri Lanka. During the civil war, the fishing boat on which the applicant worked was often stopped by the Sri Lankan navy, and was told to fish in designated areas west of Negombo.

3. The applicant lived in an area full of Sinhalese where he was regularly insulted because he is a Tamil. He claimed he was not accepted in the area because of his mixed marriage with a Sinhalese woman.

4. In 2006 the applicant was attacked by unknown Sinhalese thugs, as a result of which he was hospitalised for two weeks. The applicant could not identify the attackers, but he believes he was attacked because of his Tamil ethnicity.

5. In May 2012, while travelling to Negombo, three drunken people stopped the applicant, slapped his face, and insulted the applicant because he was a Tamil. The applicant could not identify the attackers, although he reported the incident to the police, who did nothing.

6. Two weeks later, while he was having dinner at home with his family, five armed people came to his house. When the applicant’s wife opened the door, the men asked for the applicant. The applicant’s wife signalled to the applicant, who then left the house by the back door. The armed men said they would kill the applicant.

7. The applicant went into hiding on his boat, sleeping there, rather than at his home. The applicant, however, returned to his home to have dinner with his family. The applicant believed that the men who attended his house were army men, and that they came to his house because of his Tamil ethnicity and his living in a Sinhalese area.

8. The applicant then left Sri Lanka for Australia. The applicant claimed that after he arrived in Australia, his wife informed him “the authorities” came to look for him and that armed people threatened his wife that the applicant would be killed.

9. The applicant claimed he feared he will be taken away by the authorities, the Sri Lankan Army (SLA), the Criminal Investigation Department (CID), and Sinhalese thugs, and that the authorities will torture and possibly kill him. The applicant also claimed he is unable to relocate within Sri Lanka because the SLA and CID control the whole of the country, and he will not be accepted anywhere because his wife is Sinhalese.

Tribunal’s decision

1. The Tribunal understood the applicant claimed he feared harm because he is a Tamil, because of his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), because he is in a mixed marriage, because, if he is returned to Sri Lanka, he will be a failed asylum seeker who departed Sri Lanka unlawfully, and because he is a Tamil fisherman from Negombo.

2. The Tribunal did not accept the applicant’s claim of persecution based on the applicant’s being a Tamil was supported by country information. For that reason, the Tribunal did not accept there is a real chance the applicant will be persecuted because of his Tamil ethnicity should he return to Sri Lanka. [1] For the same reasons, the Tribunal found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm. In that regard, the Tribunal relied on the following matters revealed by the country information:

   a)the Tribunal found there was a distinct group of Tamils who lived in the Negombo area who have been assimilated in part into the Sinhala community, and that the applicant’s personal profile appeared to be consistent with that of “Negombo Tamils” who have  assimilated in part into the majority Sinhalese population;[2]

   b)although the Tribunal accepted that after the civil conflict Tamils had been subjected to harassment by elements of the Sinhalese community, there is “only a low-level of discrimination in the implementation of laws and policies. More generally, there is a moderate level of discrimination between particularly ethnic groups . . . largely as a result of the civil conflict and its causes”, and there are currently no official laws or policies that discriminate on the basis of ethnicity or language;[3]

   c)there had been a cessation of the forced registration of Tamils, which suggested the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict;

   d)although the Tribunal accepted that before May 2009 some Tamils were at risk of persecution, particularly Tamils in the Northern and Eastern provinces, due to perceived support of the LTTE, it noted that, according to the United Nations’ High Commissioner for Refugees eligibility guidelines released in July 2010, due to the improved human rights and security situation, there was “no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country”;[4] the Tribunal concluded that the applicant’s profile as a Tamil fisherman from Negombo city does not fall within any of the risk profiles identified by the United Nations’ High Commissioner for Refugees eligibility guidelines of 2012;[5]

   e)there has been a positive change in the political landscape of Sri Lanka since the applicant departed Sri Lanka in July 2012;[6]

   f)there is no law or government policy that hinders access to state protection on the basis of religion or ethnicity, and that any citizen can exercise avenues of redress through the police, judiciary and the Human Rights Commission of Sri Lanka.[7]

   [1] CB259, [60]

   [2] CB254, [42]-[43]

   [3] CB255-256, [47]

   [4] CB256, [49]

   [5] CB256, [50]

   [6] CB257, [53]

   [7] CB258, [58]

3. In addition, the Tribunal found that the two claimed attacks were random attacks by assailants unknown to the applicant, and on one of the occasions, the assailants were drunk. The Tribunal did not accept the police failed to provide the applicant with protection because of his Tamil ethnicity. The Tribunal found that the reason the police may not have taken action is because the applicant could not identify the assailants.

4. The Tribunal did not accept the applicant’s claims about the armed people who came to his home. The Tribunal found the applicant’s evidence to be vague and lacking in detail. The Tribunal also found inconsistent the applicant’s evidence that he hid on his boat, yet went to his home to eat his evening meals, and that, in any event, if the applicant was a person of interest he could easily have been found on his boat, or have been observed returning home for his evening meals and questioned.

5. The Tribunal did not accept there is a real chance the applicant will be persecuted in Sri Lanka in the reasonably foreseeable future because he is a Tamil fisherman from Negombo who was charged with fishing in Indian territorial waters. The Tribunal found the applicant will be able to obtain a fishing permit and work as a fisherman if he returns to Sri Lanka in the reasonably foreseeable future.[8]

   [8] CB260, [66]-[68]

6. The Tribunal also found that the chance of the applicant’s being imputed with a political opinion as pro LTTE is remote such as not to amount to a real chance. The Tribunal, therefore, did not accept there is a real chance the applicant will be persecuted for an actual or imputed political opinion should he return to Sri Lanka in the foreseeable future. For the same reason, the Tribunal found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm on the ground of any actual or imputed political opinion.[9] The Tribunal relied on the following matters:

   a)the applicant did not claim to have been involved in politics in Sri Lanka;[10]

   b)there is no evidence the applicant is a supporter or member of any Tamil independence movement in Sri Lanka or abroad since he arrived in Australia;[11]

   c)neither the applicant nor members of the applicant’s family have been arrested or detained by authorities because of any suspected involvement with the LTTE, and the applicant says he has had no association with the LTTE;[12]

   d)the applicant was born in South Sri Lanka and has been living in Negombo in West Sri Lanka, an area which is outside the LTTE’s historic strongholds in the North and North West of Sri Lanka;[13] and

   e)the applicant has lived and worked in the same village between 1998 and 2012.

   [9] CB261, [77]-[78]

   [10] CB260, [70]

   [11] CB260, [70]

   [12] CB260, [71]

   [13] CB260, [73]

7. The Tribunal did not accept there is a real chance the applicant will be persecuted because of his mixed marriage and, for the same reasons, found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm because he is in a mixed marriage. The Tribunal accepted that the applicant’s father-in-law might have disapproved of the applicant’s marriage to his daughter. The Tribunal found, however, that marriage between Tamils and Sinhalese is not uncommon and, although problems arise, most arise from family conflicts. Further, the applicant had lived with his wife’s parents since 1998, and the applicant’s father is now deceased.

8. Fourth, the Tribunal was not satisfied there is a real chance the applicant would suffer serious harm amounting to persecution if he returned to Sri Lanka because he is a failed asylum seeker, or because he is a member of any other particular social group of persons who left Sri Lanka illegally, and unsuccessfully sought asylum overseas. The Tribunal found the applicant breached s.45(1)(b) of the Sri Lankan Immigrants and Emigrants Act (IEA); that the applicant will be questioned at the airport; that there is a possibility the applicant will be held in remand for a limited period; that the conditions in remand are overcrowded and unsanitary, with a lack of water and food; and that, unless the returnee is suspected of being a people smuggler, or if there is evidence of an outstanding criminal matter, the returnee will be fined, rather than imprisoned.

9. The Tribunal did not accept there was evidence the applicant will be suspected of people smuggling, or that there is evidence of outstanding criminal matters relating to the applicant, or that the applicant would be on a watch list. The Tribunal otherwise accepted the applicant would be detained for a relatively short period and fined for having breached s.45(1)(b) of the IEA. The Tribunal found, however, that this did not amount to systematic and discriminatory conduct within the meaning of s.91R(1)(c) of the Migration Act 1958 (Cth) (as the Act applied at the relevant time). The Tribunal also found that this would not constitute persecution for a Convention reason. Further, the Tribunal was not satisfied that the applicant’s being questioned at the airport, or his being temporarily detained and fined, would constitute arbitrary deprivation of life, torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.

10. In addition, the Tribunal considered whether the applicant had a claim on the ground he was a Tamil fisherman.  The Tribunal accepted the applicant would have come in contact with the Sri Lankan navy during the civil war, that the navy imposed fishing restrictions on the applicant’s fishing activities, and that those restrictions would have made it difficult for the applicant to work as a fisherman. The Tribunal noted, however, that the fishing restrictions have been lifted after the civil war, “navy passes” are no longer required, and the Sri Lankan District Fisheries Office in the Northern, Eastern, and Western provinces now issue identity cards to fishermen which frees them from all the previous restrictions. The Tribunal found the applicant will be able to obtain a fishing permit issued by the Department of Fisheries if he returns to Sri Lanka. The Tribunal, therefore, did not accept there was a real chance the applicant will be persecuted because of his Tamil ethnicity or because he is a Tamil fisherman from Negombo who was charged with fishing in Indian territorial waters.

Hearing before the Court

1. At the hearing before me the applicant, who is not legally represented, tendered four documents. The first is a “Clinic referral form” apparently issued by the District General Hospital in Negombo. The applicant said this related to his son. The second is a “Diagnosis Ticket” issued in relation to the applicant. It refers to the applicant having been admitted into hospital on 26 July 2011 and discharged on 3 August 2011. The third document purports to be a letter dated “18/08/2015” addressed to “Chife [sic] officer Australian Immigreation [sic], Australia” from a named person who is the “Grama Niladari” of a particular division. The applicant did not appear to understand the contents of the document because he described the letter as having been written by a doctor. The letter purports to describe an incident in 2010 in which the applicant was attacked and injured during elections in which he was posting posters. The fourth document is a photograph of what the applicant said was his family.

2. Mr Glavac, who appeared for the Minister, objected to the tender of these documents. I reserved my ruling on their admissibility. In my opinion, the documents are inadmissible because they are irrelevant. The applicant informed me that he did not provide the documents to the Tribunal. Further, the documents did not appear to relate to any event on which the applicant relied in support of his application for a Protection visa. I therefore reject the tender of the documents.

Ground of application

1. The application contains one ground:

   The Tribunal Member asked me questions which were not relevant to my case. I believe the member did not consider my claims and I was not treated fairly.

2. Considered alone, this ground discloses no jurisdictional error. It does not identify the questions the applicant claims the Tribunal asked which were not relevant to the applicant’s case. Nor does the ground identify the facts or matters on which the applicant relies for claiming that he was not treated fairly. Further, the claim the Tribunal did not consider the applicant’s claims cannot be made out. My summary of the applicant’s claims for protection, and the Tribunal’s reasons for rejecting those claims, show that the Tribunal identified, and considered the claims the applicant made; and that the conclusions the Tribunal  reached were reasonably open to it for the reasons it gave.

3. At the hearing, I invited the applicant to make submissions in relation to this ground. The applicant said he emphasised to the Tribunal again and again that he was a fisherman and that, if he were to return to Sri Lanka, he will be persecuted and harmed. This does not disclose any jurisdictional error; it expresses the applicant’s disagreement with the Tribunal’s not accepting the applicant will suffer harm because he is a Tamil fisherman. The Tribunal considered, but rejected those claims; and it rejected those claims for reasons that were reasonably open to it.

4. Finally, I note that, before I invited the applicant to make submissions in relation to the ground stated in his application, the applicant submitted that he could not return to Sri Lanka; he is afraid to go back because he will be killed because he worked as a fisherman. That submission does not disclose any jurisdictional error by the Tribunal. As I informed the applicant, this Court does not have jurisdiction to determine whether the applicant has a well-founded fear of persecution, or whether the applicant will be harmed if he returns to Sri Lanka; that was a matter for the Tribunal to determine.

Conclusion

1. The applicant has not demonstrated the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 21 October 2016