BLX16 v Minister for Immigration

[2019] FCCA 405

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLX16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 405

Catchwords:
MIGRATION – International Treaties Obligations Assessment – refugee status assessment – whether the Assessor erred by concluding that the applicant’s family members did not support the LTTE in any significant way, in circumstances where the UNHCR Guidelines did not specify that the support of the LTTE needed to be significant for family members to be at risk.

Cases cited:
SZVZN v Minister for Immigration and Border Protection (2017) 72 AAR 449; [2017] FCA 954

Other materials:

UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012

Applicant: BLX16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: PAUL JOHNSON (IN HIS CAPACITY AS AN INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR)

File number: MLG 1259 of 2016

Judgment of: Judge Riley

Hearing date: 16 November 2018

Date of last submission: 20 November 2018

Delivered at: Melbourne

Delivered on: 22 February 2019

REPRESENTATION

Advocate for the applicant: Stephen Hodges

Solicitors for the applicant: Hodges Legal

Counsel for the first respondent:	Christopher Tran
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Clayton Utz

ORDERS

1. The application filed on 16 June 2016 and amended on 20 November 2018 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1259 of 2016

BLX16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

PAUL JOHNSON (IN HIS CAPACITY AS AN INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR)

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by an International Treaties Obligations Assessor that, relevantly, the applicant did not have a well-founded fear of being persecuted for a Refugee Convention reason.

The applicant’s claims

1. The applicant summarised his claims in his written submissions filed on 20 November 2018 as follows:

   13.1The applicant’s father owned a grocery store and was abducted by the Sri Lankan Army (SLA) in 1995.

   13.2The applicant relocated to Colombo with his mother and brother following his father’s disappearance so that his mother could receive medical treatment.

   13.3The applicant and his family lived in a Sinhalese neighbourhood. As a result, he and his brother were subjected to harassment and discrimination.

   13.4When the applicant’s aunt visited his family from Canada in 1992, she urged the family to leave Sri Lanka.

   13.5The authorities visited the applicant’s house and harassed his family on several occasions between 1995 and 1999.

   13.6In 1999, the applicant was interrogated as to the whereabouts of his father by men in a green uniform. This occurred on eight to ten more occasions that year. The applicant was subjected to physical abuse on some of these occasions.

   13.7As a result, the applicant and his family left Sri Lanka for India in 1999. They travelled to India under a six-month visa.

   13.8The applicant’s aunt told the applicant that his father had been arrested due to his links to the LTTE.

   13.9The applicant was later told that all the relatives on the paternal side of his family were members of the LTTE. Specifically, his uncle dug trenches for the LTTE and his grandparents cooked food for the LTTE.

   13.10The applicant’s mother passed away in 2012 and the applicant’s brother remains in India.

The International Treaties Obligations Assessor’s reasons

1. The applicant summarised the International Treaties Obligations Assessor’s reasons in his written submissions filed on 20 November 2018 as follows:

   14.1It was accepted, as plausible, that the applicant’s father used to be the proprietor of a grocery shop in Jaffna [and] was abducted in 1995.

   14.2It was similarly accepted that the applicant’s mother suffered from mental health problems and required treatment from specialists in Colombo.

   14.3It was accepted that the applicant’s housing tenement in Colombo would have been frequently visited by the Sri Lankan security forces. It was also noted that the applicant’s family would have been of interest to the authorities since they were new arrivals and were missing men of fighting age.

   14.4It was also accepted that the applicant’s housing tenement could have been visited by security forces looking for evidence or information about the LTTE attacks and that Tamils were under suspicion at that time.

   14.5It was accepted that the applicant would have been victimised or bullied by the majority Sinhalese in Colombo schools and neighbourhoods.

   14.6It was accepted that the applicant’s mother passed away in 2012 and that the applicant has a mental health condition.

   14.7It was not accepted that the applicant’s father or his family were involved with supporting the LTTE in any significant way.

   (footnotes omitted)

Ground of application

1. The single ground of review in the application filed on 16 June 2016 and amended on 20 November 2018 is:

   The ITOA Reviewer applied the wrong test when considering the applicant’s imputed links to the LTTE.

   Particulars

   (a)The applicant claimed that his father and his father’s family supported the LTTE.

   (b)The applicant elaborated that his uncle had dug trenches for the LTTE and his grandparents had cooked food for the cadres.

   (c)In their decision, the reviewer referred to risk profiles outlined by the UNHCR in their 2012 report titled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka”.

   (d)The fourth and sixth profiles outlined in the report are as follows:

   (4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE

   (6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles

   (e)The reviewer found that the applicant did not appear to fall under any of the risk profiles outlined in the report.1

   (f)The reviewer found that neither the applicant’s father nor his family were involved with supporting the LTTE in any significant way.2

   1 CB at page 345.

   2 CB at page 356.

   (g)The test referred to by the assessor does not require the support to be significant.

2. The applicant particularly took issue with the Assessor’s conclusion at page 23 of the Assessor’s reasons for decision (CB356) that:

   I do not accept the following claims are plausible:

   ·The Claimant’s father or his family were involved with supporting the LTTE in any significant way.

3. The applicant argued that the Assessor, in making that statement, had fallen into jurisdictional error by applying the wrong test.  The applicant noted that the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, an extract of the relevant part of which can be found at CB345, sets out certain categories of people who may require protection on the basis of their actual or imputed association with the LTTE, namely:

   1.Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

   2.Former LTTE combatants or “cadres”;

   3.Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

   4.Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

   5.LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

   6.Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles. (footnote omitted)

4. The applicant argued that his uncle’s digging of trenches for the LTTE, and his grandparents’ supplying of food to the LTTE, put them within category 4, and he therefore fell within category 6 of the UNHCR Guidelines.

5. The applicant argued that the Assessor fell into jurisdictional error by considering whether the applicant’s family members had supported the LTTE in any significant way, when the UNHCR Guidelines did not require that the support be significant.  The applicant also argued that the Assessor had not engaged in an active intellectual process in relation to the support the applicant’s family members provided to the LTTE, but merely skimmed over the evidence in that regard.

6. In support of his contentions, the applicant relied on SZVZN v Minister for Immigration and Border Protection (2017) 72 AAR 449; [2017] FCA 954, where Bromwich J said:

   30.Counsel for the appellant submitted that the UNHCR Guidelines were centrally relevant to the appellant’s case because they specifically stated that former LTTE combatants or cadres were likely to be at risk depending on individual circumstances. Given the centrality of that aspect of those guidelines, it was said to be expected that the submission that the appellant fell within their terms would have been addressed. I take counsel’s submission to mean that those guidelines would be expected to have been addressed by the Tribunal in terms and with some specificity in order to consider properly, as a matter of due process in the exercise of jurisdiction, the claims being made.

   31.Notwithstanding that the Tribunal summarised parts of the appellant’s submissions of 24 November 2014 generally, it was submitted that the Tribunal failed to direct an active intellectual process to the part of those submissions dealing with the UNHCR Guidelines. The fact that the Tribunal’s reasons omit any reference to the UNHCR Guidelines was said to be a strong indication that the submission was not considered: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at 75 [34].

   …

   42. In my view, however, the Tribunal’s regard to the individual circumstances of the appellant’s case does not compel the conclusion that the UNHCR Guidelines were considered, or at least considered in a way that addressed the issue raised on behalf of the appellant. Indeed, it is open to conclude that the Tribunal’s reasoning is responsive only to the appellant’s factual claims about his history with the LTTE, without accepting or perhaps even considering the distinct submission that he might fall within the UNHCR Guidelines. In this regard, the Tribunal’s reasons are ambiguous.

7. The applicant accepted that SZVZN was a little different to the present case, but nevertheless argued that the Assessor erred by introducing the concept of significant.  The applicant also noted that the Assessor did not say what significant meant in the present context.  The applicant argued that, although the Assessor accepted that the applicant’s family members gave some support to the LTTE, the Assessor did not identify precisely what that support was, and thereby failed to engage with the case the applicant presented.

8. The Minister argued that the Assessor had not fallen into jurisdictional error for six reasons, namely:

   a)the question for the Assessor was whether the applicant met the real chance test, which the Assessor applied, not whether the applicant met the UNHCR Guidelines, which are nothing more than one piece of evidence;

   b)the UNHCR Guidelines were of particular relevance in SZVZN, because the applicant in that case expressly relied upon them, unlike the present case, where the applicant only addressed the UNHCR Guidelines when the Assessor put them to him, and, even then, the applicant only referred to his father’s experience with the LTTE and said nothing about his uncle digging trenches for the LTTE or his grandparents supplying food to the LTTE;

   c)it was a matter of fact for the Assessor to decide whether the applicant fell within the UNHCR Guidelines, and, in any event, digging trenches and supplying food do not actually fall within category 4 in the UNHCR Guidelines;

   d)the Assessor correctly identified the purpose of the UNHCR Guidelines, which is to identify people who may require international protection, on the basis of their actual or imputed association with the LTTE; the Assessor determined that any activities engaged in by the applicant’s uncle and grandparents did not give rise to the applicant facing a real chance of serious harm;

   e)the Assessor is required to actively engage intellectually with mandatory relevant considerations but is not necessarily required to actively engage intellectually with every item of evidence, such as the UNHCR Guidelines, especially where the applicant, as here, did not raise them; and

   f)the is no reason to believe that the Assessor overlooked the UNHCR Guidelines, as it was the Assessor who put them to the applicant for comment, and set them out in the reasons for decision.

9. I accept the Minister’s submission that the Assessor did not make the jurisdictional error alleged, for the reasons given by the Minister. 

10. In addition to the matters set out above, I note SZVZN is distinguishable, because, in that case, the applicant’s claim that he met the UNHCR Guidelines was central to his case, and the jurisdictional error was the failure to deal with that submission.  That is made plain by the following paragraphs of SZVZN:

    42.In my view, however, the Tribunal’s regard to the individual circumstances of the appellant’s case does not compel the conclusion that the UNHCR Guidelines were considered, or at least considered in a way that addressed the issue raised on behalf of the appellant. Indeed, it is open to conclude that the Tribunal’s reasoning is responsive only to the appellant’s factual claims about his history with the LTTE, without accepting or perhaps even considering the distinct submission that he might fall within the UNHCR Guidelines. In this regard, the Tribunal’s reasons are ambiguous. (emphasis added)

    43. I accept that there is no general requirement for the Tribunal to name specifically and identify the UNHCR Guidelines by title: VWFW at [71]. However, having regard to the centrality of the appellant’s submission, the absence of specific reference to those guidelines and the absence of evidence supporting a clear inference that they were implicitly addressed tells against the suggestion that the appellant’s submission was considered. Were there nothing more to go on, the appellant might have failed by the application of the onus on him to show that the UNHCR Guidelines were not considered in a way that addressed a claim critical to his case. However, the analysis does not stop there.

    …

    47. I reach the same conclusion in this case, for substantially similar reasons. In light of the analysis engaged in above, the Tribunal’s reasons disclose no consciousness, nor any consideration of the information in the guidelines, and the impact that information might have on the appellant’s claims for protection. The appellant has gone far enough to demonstrate that, on the balance of probabilities, the Tribunal did not consider a submission central to his case, namely, whether he might fall within the UNCHR Guidelines by reason of his past involvement with the LTTE. It follows that the Tribunal failed to exercise its jurisdiction as required.

11. Rather than the UNHCR Guidelines being central to the applicant’s case in the present proceeding, the UNHCR Guidelines were only raised in this proceeding because the Assessor brought them to the applicant’s attention.  The Assessor summarised at pages 12-13 of his reasons for decision (CB345-6) the puttage of the UNHCR Guidelines as follows:

    I put to the Claimant that of the six UNHCR identified categories (set out above), he did do not appear to fall under the first, second, third, fourth, fifth or sixth groupings. I advised the Claimant that on this basis I may conclude that he did not have a profile that would lead to him facing a real chance of serious harm for Convention related reasons, and I may then find that he was not requiring protection in Australia. I invited him to comment on that.

    In response, the Claimant stated that when he thinks about the CID and the military he is very scared. He stated he things (sic) he belongs to the category of family links with the (LTTE) and the belief his father was taken and killed because he was imputed to be LTTE. The Claimant said he came under the last category. He said that the authorities started coming to his house, when he was young, and it was frozen in his mind. The Claimant stated he firmly believed because of his family links what happened to his father would happen to him, and they will definitely detain and kill him. He said that even now the Tamil youths are being abducted and killed.

12. It can be seen that, when the UNHCR Guidelines were put to the applicant, he did not raise the claim about his uncle digging trenches for the LTTE or his grandparents providing them with food.  While it is the case that the Assessor must deal with claims whether they are expressly or implicitly raised by an applicant, or whether they arise on the materials, there is no reason to doubt that the Assessor did deal with the claims.  The Assessor implicitly accepted that the applicant’s uncle dug trenches for the LTTE and his grandparents provided them with food.  However, the Assessor considered that this did not amount to significant support for the LTTE, such as to result in the applicant facing a real chance of serious harm.  That finding was open to the Assessor. 

13. The UNHCR Guidelines are not a statute that the Assessor was bound to apply.  Rather, the Assessor was only required to consider whether the applicant faced a real chance of serious harm for a Convention reason or significant harm as defined in the Act.  The Assessor did so.

14. Although the Assessor’s statement at CB356 that:

    I do not accept the following claims are plausible:

    ·The Claimant’s father or his family were involved with supporting the LTTE in any significant way.

    appears at first blush to be very blunt and unsupported by reasons, it was in fact a summary of the Assessor’s findings.  Relevant detail was provided later in the Assessor’s reasons for decision, including in the last paragraph on page 24 of the Assessor’s reasons for decision, which runs over to page 25 (CB357-358) and which is as follows:

    The abduction or disappearance of Claimant’s father in 1995, and his LTTE links.

    I note that in his various interviews with the Department, the Claimant knew very little about the circumstances surrounding the disappearance of his father from the Jaffna area in 1995. The Claimant did not appear to know who was responsible for taking his father, or why his father was taken. The Claimant appeared to know little or nothing about his father’s social or political activities beyond his running a medium sized grocery store in the Jaffna area. The Claimant's version of events was similar between his Entry Interview and his RSA Interview. However, this account changed at the time of the Claimant's Independent Merits Review, when he advised the Reviewer that his aunt (from Canada) had told him that his father had LTTE affiliations. At his ITOA Interview the Claimant submitted that his father’s family were all LTTE supporters, his brother dug trenches for them, and other family members cooked meals for them. I note that this constitutes an important difference from his earlier account because he did not previously mention his father’s imputed or suspected LTTE affiliation or support, or the LTTE support from his family. I note that many civilian Tamils from places under former LTTE control had incidental contact with the LTTE and its civil administration in their daily lives.40 If members of the Claimant’s family were coerced or conscripted by the LTTE to build trenches or provide food to the LTTE, I do not accept this necessarily made them LTTE supporters, or that they would be imputed as such by the authorities who were more concerned about LTTE cadres, smugglers and leaders. In any event, I assess that voluntary activities of the kind the Claimant mentioned his family participated in represent very minor level involvement or support. The Claimant has provided little detailed information about how his father’s family were associated with the LTTE, or what they did in support of the LTTE.

    40UN High Commissioner for Refugees, “UNHCR Eligibility Guidelines for Assessing the International Protection. Needs of Asylum-Seekers from Sri Lanka”, 21 December 2012, UNBO183EA8 at p.26.

1. All in all, I am not persuaded that the Assessor made the jurisdictional error alleged.  The ground of review is not made out.

Conclusion

1. As the applicant’s ground of review has not been made out, the application must be dismissed with costs.

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

Date:              22 February 2019