BMR16 v Minister for Immigration

[2018] FCCA 1034

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMR16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1034

Catchwords:
MIGRATION – Protection visa application – review of Immigration Assessment Authority decision – whether the Authority failed to consider material submitted by the applicant – whether the Authority failed to follow findings it had made and evidence before it – whether the Authority failed to apply the UNHCR Guidelines to the applicant’s circumstances – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA

Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).

Other material cited:
Prevention of Terrorism Act (Sri Lanka)

Cases cited:

Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Applicant: BMR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 269 of 2016

Judgment of: Judge Smith

Hearing date: 21 February 2018

Date of Last Submission: 21 February 2018

Delivered at: Perth

Delivered on: 21 February 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms L Helsdon, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 269 of 2016

BMR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for review of a decision made by the Immigration Assessment Authority.  The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Sri Lanka who arrived in Australia by boat without a visa on Christmas Island on 17 August 2012.  In those circumstances he came to be what is known as an unauthorised maritime arrival, although it had a different name at that time. 

3. The applicant was not able to lodge a valid application for a visa without a prior decision of the Minister to enable him to do so.  After the Minister did decide to allow the applicant to apply for a protection visa, the applicant did so on 24 September 2015. 

4. The claims he made in support of that application are summarised at [4] of the Authority’s decision which I set out below:

   …

   ·He was born in Jaffna district. He moved with his family to Trincomalee in Eastern Province to escape the conflict in 1986 and they returned to Jaffna in 1988

   ·From 1990 to 1994 the applicant and his family lived in a refugee camp in Tamil Nadu, India; they were not formally recognised as refugees

   ·They returned to Jaffna briefly but moved again to Trincomalee and the applicant resided there until he came to Australia

   ·One of the applicant's brothers lives in the UK and he has a .sister in Canada. The other members of his family remain in Trincomalee

   ·The applicant completed year 11 at school in 2001 and completed a six month trade course as an electrician

   ·He and his father worked as three-wheeler drivers from 2006

   ·Three-wheeler drivers were often harassed and questioned by the Sri Lankan Army (SLA) because they were suspected of transporting LTTE[1] personnel or supplies; soldiers also demanded that they be given free rides

   [1] Liberation Tigers of Tamil Eelam.

   ·Prior to the end of the civil war in 2009 the applicant's father was arrested and detained about eight times for up to two days and questioned about who he knew in the LTTE

   ·The applicant himself was arrested three times while driving. Sometimes he would be stopped at checkpoints and when it was discovered that he only spoke Tamil he would be arrested

   ·In 2006 when he was driving one night after the shooting of five Tamil students he was attacked by SLA at a checkpoint

   ·In March 2009 there was an explosion in Trincomalee and the applicant was arrested and detained at a checkpoint when it was found he could not speak Sinhalese

   ·In April 2009 an army sentry box at a UNHCR[2] camp was attacked by someone who arrived in a three-wheeler, and all the drivers waiting at the stand outside the camp were attacked by soldiers

   ·During 2009, after the defeat of the LTTE, the applicant received phone calls from people claiming to be from the LTTE intelligence unit asking for protection money. They threatened that the applicant and members of his family would be kidnapped if they did not pay. The applicant did not believe that the callers were really from the LTTE. He told the police but did not think they would protect him. He made a complaint with the Human Rights Commission so that there would be an independent record of the threats. The applicant spent some time in Mannar (on the western side of the island) because he was afraid, but the calls stopped after a few months

   ·From 2010 until he left Sri Lanka the applicant was one of twelve people elected to the village council. Because the councillors were considered to have information about activities in the village, every time something happened the authorities questioned the applicant. He has provided inconsistent information about a claimed detention in early 2012 which he says led to his decision to depart Sri Lanka

   ·The applicant claims that all Tamils are harassed, and he is particularly under suspicion as a three-wheeler driver and because of his role on the village council; he says that the government does not protect Tamils

   ·Since he has been in Australia, officials from the CID[3] have approached his family saying that they have documents showing that the applicant is in Australia and offering to delete the records if bribes are paid. His family has not paid the money and the applicant fears he may be arrested at the airport if he returns

   ·The applicant claims that it is not safe for him to continue to work as a three-wheeler driver, but he would be unable to obtain any other work because he does not speak Sinhalese

   [2] United Nations High Commissioner for Refugees.

   [3] Criminal Investigation Department.

5. In addition to his claims, the applicant sent a number of documents to the Department for consideration including, on 10 December 2015, a media article by Julian Borger on the torture of Tamil detainees in Sri Lanka.  The article dated 13 August 2015 refers to a report by the UK-based charity, Freedom from Torture (FFT).  It will be necessary to return to that article in due course.

6. On 27 April 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate also found that the applicant was not an excluded fast track review applicant and, in the circumstances, that meant that the matter was referred automatically to the Authority for review. That review is undertaken under pt.7AA of the Migration Act 1958 (Cth), which essentially provides for a review on the papers. That is what occurred in this case and, on 25 May 2016, the Authority handed down its decision.

7. The Authority’s reasons for decision are summarised in the first respondent’s written submissions at [9] to [18] and I adopt those paragraphs and set same out below:

   9The IAA[4] found that the applicant’s accounts of having been subjected to questioning, detention and assaults during the war years, after specific security incidents, to be plausible and credible: CB 238, [9], [10]. Accordingly, the IAA accepted that the applicant and his father were subject to numerous arrests and detentions during the period of the civil war because they were suspected of supporting the LTTE and that they may have come under suspicion because, as three-wheeler drivers, they were suspected of transporting LTTE personnel or supplies or of having information about LTTE movements: CB 238, [11]. However, the IAA found that there was no information that the applicant or his father had ever been found to have been involved with the LTTE and that, given the war ended in 2009, there was not a real chance that routine arrests of that nature would continue: CB 238, [11].

   [4] Immigration Assessment Authority.

   10In relation to his role as village counsellor the IAA accepted that authorities approached the applicant for information about the goings on in his village, but did not accept that he had been detained in early 2012, because the authorities wanted him to provide information about possible LTTE activity in the village: CB 239, [13].

   11The IAA further accepted that the applicant’s brother had been detained in 2012 and accused of involvement with the LTTE, however, found that his rapid release and ability to leave and return to Sri Lanka without difficulty, together with the fact that he had not been subject to any further arrests, indicated he was not currently under suspicion as a supporter of the LTTE: CB 240, [14]. Accordingly, the IAA found that no adverse profile would be imputed to the applicant because of his connection with his brother: CB 240, [14].

   12Having regard to the UNHCR’s guidelines the IAA found that the applicant was not a person of concern to the authorities and although it accepted that the applicant may be questioned more often than others it did not accept that such questioning reached the threshold for persecution: CB 240, [15]. The IAA therefore found that the applicant was not at risk of harm of any kind in Sri Lanka because of his real or suspected links to the LTTE: CB 240, [15].

   13The IAA accepted the claims of extortion threats in 2009, however, found that the applicant was no longer at risk from whoever was responsible given the time that had passed, the lack of further threats and the fact that no harm had come to the applicant’s family as a result of those threats: CB 241, [17].

   14The IAA also accepted that, subsequent to the applicant’s departure, his family had been approached by people claiming to be the CID who offered to destroy documents relating to the applicant if a bribe was paid. The IAA found that, if the people were in fact from the CID they were not acting in an official capacity, that it was doubtful they were in possession of documents showing that the applicant was in Australia and that the attempts to extort money would not have any bearing on the way the applicant would be treated if he were to return to Sri Lanka: CB 241, [18].

   15The IAA accepted that SLA personnel might, from time to time, demand free transport on the applicant’s three-wheeler but did not accept that such extortion reached the threshold of serious harm: CB 241, [19].

   16The IAA further considered the applicant’s claims of discrimination as a Tamil and found that:

   16.1Although it might limit his employment opportunities he could continue with his employment as a three-wheeler driver; and

   16.2Country information indicated Tamils may suffer societal discrimination, however, the applicant’s evidence about his circumstances did not indicate that he had been subject to a level of discrimination so serious as to amount to persecution in the past: CB 241, [20], [21].

   17The IAA found that the applicant did not face a real chance of persecution as a result of his status as a failed asylum seeker or illegal departure: CB 243, [43]. The IAA accepted that the applicant had departed Sri Lanka illegally (CB 242, [22]) and that on return he would be investigated and questioned (CB 242, [26]), charged under the Immigration and Emigration Act and fined and released: CB 242, [27]. The IAA found that the authorities would quickly establish that the applicant had no involvement with the LTTE during the conflict and that he had no current involvement with the LTTE and would not be subjected to any investigation on return that might involve serious harm: CB 242, [26]. In any event, the IAA found that the procedures and penalties under which the applicant would be dealt with were a non-discriminatory law of general application: CB 243, [28].

   18The IAA found that the applicant did not meet s 36(2)(a) of the Act (CB 244, [31]), and proceeded to consider the application against the complementary protection criterion. In line with its anterior findings of fact, it found that the applicant did not face a real risk of significant harm for any of the reasons claimed: CB 244, [32]-[41]. In respect of the poor prison conditions, the IAA found that the conditions would not amount to significant harm as defined and that they would not be intentionally inflicted for the purpose of the relevant statutory definitions: CB 245, [39]. Nor was it satisfied that the imposition of a fine would constitute significant harm under ss 5 and 36(2A) of the Act: CB 245, [38]. Accordingly, the IAA found that the applicant did not satisfy the requirements of s 36(2)(aa) of the Act: CB 245, [40].

   (Emphasis in original)

Consideration

1. In his application for judicial review, the applicant sets out four grounds of review.  In addition to those grounds, the applicant has set out in various affidavits a number of submissions which include contentions of error made by the Authority.  It will be necessary to deal with some of those contentions. 

2. At the hearing today, the applicant appeared in person without any representation and he made certain submissions, effectively, with one exception, that addressed the question of whether or not he ought to be granted a visa.  The exception is that the applicant said that the Authority did not consider his claim that the authorities went to his house after he had left Sri Lanka.  That can be dealt with quickly.  At [18] of its reasons the Authority expressly accepted that claim but rejected any ongoing impact of it. 

3. I begin consideration of the matter by reference to the grounds in the application.  The first two grounds are, in effect, that the Authority did not consider the impact of the Prevention of Terrorism Act (Sri Lanka) on the applicant given that close members of his family were arrested and detained under that Act.  The answer to that ground is that the Authority did in fact “accept that the applicant and his father were subject to numerous arrests and detentions during the period of the civil war”: see [11] of the Authority’s reasons.  For that reason, the first two grounds as they stand are to be rejected. 

4. However, the ground raises another issue that needs some further consideration.  As I have mentioned, the applicant sent to the Department a number of documents concerning the Prevention of Terrorism Act, including the article by Julian Borger.  There is no express reference in the Authority’s decision to that material.  That raises two questions:  first, whether the Authority in fact considered the material;  and, secondly, if it failed to consider the material, whether it fell into jurisdictional error. 

5. In Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114, the Full Court of the Federal Court said at [38] that the decision-maker in that case could not undertake a review of a decision concerning the Refugees Convention[5]:

   ... without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in [country] for him if he were to be returned there. …

   See also [51] of MZYTS.

   [5] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the

6. It may be accepted that a failure to refer to evidence in a statement of reasons can give rise to the inference that that evidence was overlooked. 

7. In determining those two questions, it is important to have regard to both the cogency of the material in question and also the importance of the material to the actual reasoning of the decision-maker: see Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317. It is important to understand that in doing this that the Court is not entering into fact-making and must not determine what weight it would give the material, but is only assessing whether the Authority has properly had regard to all of the material before it.

8. The first step is to have a look at the material in question, and the second step is to have close regard to the way in which the Authority made its decision.  Those two things will assist in determining whether the Authority did look at the material and, if it failed to, whether it fell into error. 

9. The Borger article first states that:

   Sri Lankan security forces have continued to torture Tamil detainees even after the election of reformist president Maithripala Sirisena in January, according to a report.

10. According to the article, the FFT report “looks mostly at abuses during the Rajapaksa era” but “continued to receive referrals of Sri Lankan torture victims in 2015”. It further explains that:

    … Almost all the cases FFT reviewed involved Tamils, detained because they were suspected of having personal or family ties to the Tamil Tigers.

11. It goes on to describe some of the common forms of torture which it is not necessary to repeat here.  Needless to say, if any person were inflicted with such treatment they would be being persecuted. 

12. A number of important things arise from the article.  First, it refers to a recent report of ongoing circumstances in Sri Lanka; secondly, it relates to serious harm being inflicted upon Tamils in Sri Lanka; and, thirdly, it says that almost all the incidents in question “involved Tamils, detained because they were suspected of having personal or family ties to the Tamil Tigers”. 

13. With those matters in mind it is important now to turn to the Authority’s reasons in relevant respects.  The critical paragraphs in the Authority’s reasons are [11] and [15], and I set those out below:

    11.I accept that the applicant and his father were subject to numerous arrests and detentions during the period of the civil war. I note that the applicant has provided inconsistent information about the date of one claimed detention following an explosion in Trincomalee – in his statutory declaration he said that this was in April 2009, which would have been before the civil war ended, whereas at the SHEV interview he said that it was after the end of the war. Either way, I find that the incident happened during the war or soon after it ended, and I consider that the arrest of the applicant in the context of this security incident does not reflect a current or ongoing risk of harm. I accept that during the civil war the applicant and his father were questioned by the SLA when they were rounded up with other Tamils because they were collectively suspected of supporting the LTTE. I also accept that the applicant and his father may have come under suspicion because as three wheeler drivers they were suspected of transporting LTTE personnel or supplies, or of having information about LTTE movements. However, there is no information before me to suggest that the applicant or his father were ever found to have been involved with the LTTE. They were detained for brief periods then released. Given that the war ended in 2009 I do not consider that there is a real chance that routine arrests of this nature would continue. Country information indicates that the Sri Lankan security authorities continue to monitor Tamil populations in the Northern and Eastern Provinces which are still heavily militarised, although it appears that the highly oppressive monitoring and registration regime in place just after the war is being eased. Reports of arbitrary arrests and detentions have significantly reduced. The purpose of the ongoing monitoring seems now to be less concerned with seeking out those people who were previously involved with the LTTE than with ensuring that the organisation does not re-emerge, and with eliminating dissent. I accept that some people who had certain links with the LTTE may continue to be at risk of harm, especially if they are taken into detention by security authorities as part of the process of monitoring, given the evidence about the prevalence of torture and mistreatment in detention. Based on the information provided by the applicant, I find that the authorities do not regard him as having past or present connections with the LTTE.

    …

    15.UNHCR’s most recent (2012) Guidelines for assessing the eligibility of Sri Lankans for asylum state that there is no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity and a prior resident of areas of the country previously under the control of the LTTE, namely the Northern and Eastern Provinces. The Guidelines state that persons suspected of certain links with the LTTE may be in need of international refugee protection, depending on the individual circumstances of their case. Given my findings about the profile of this applicant, I conclude that he is not a person of particular concern to the authorities. On the basis of the applicant's evidence, I find that he does not have any past or current links or connection with the LTTE. While I accept that as a three-wheeler driver, and as a member of his village council, he might be viewed as a source of useful information and questioned more often than others, I do not accept that such questioning in the current climate reaches the threshold for persecution. As noted above, I do not accept that the applicant was detained in early 2012. Given that finding, there is no credible evidence before me that he has been detained since the end of the war. The credible evidence before me does not support a finding that since 2009 the applicant has been subjected to surveillance, monitoring, harassment, threats or questioning to such a degree that it amounts to persecution. The evidence does not indicate that there is a real chance that this situation would change in the reasonably foreseeable future. I find that the applicant is not at risk of harm of any kind in Sri Lanka because of real or suspected links to the LTTE.

    (Citations omitted)

1. In summary, in [11], the Authority accepted, as I have already mentioned, “that the applicant and his father were subject to numerous arrests and detentions during the period of the civil war” and goes on to say that it accepted that during the civil war, which ended in April 2009, “the applicant and his father were questioned by the SLA when they were rounded up with other Tamils because they were collectively suspected of supporting the LTTE”. 

2. It also accepted “that the applicant and his father may have come under suspicion because as three wheeler drivers they were suspected of transporting LTTE personnel or supplies, or of having information about LTTE movements”.  However, what was important to the balance of the Authority’s reasons was that it found no information “that the applicant or his father were ever found to have been involved with the LTTE”.  It explained in this respect that they were both detained for brief periods and then released. 

3. Next, the Authority turned to the circumstances after the end of the civil war and stated that, in its view, there was no real chance that routine arrests of that nature would continue.  It then set out its reference to certain country information.  It is important to note in this respect that the country information includes a report from the Department of Foreign Affairs and Trade (DFAT) dated 18 December 2015.  In other words, a relatively recent report that, given it came from the Australian Government, might be given some weight. 

4. The Authority noted that the reports showed that monitoring and registration regime had been eased after the war and that arbitrary arrests and detention had been significantly reduced.  It accepted “that some people who had certain links with the LTTE may continue to be at risk of harm” and referred in this respect to the continued reports of the prevalence of torture and mistreatment in detention.  However, it restated that it found that the authorities did not regard the applicant as having past or present connections with the LTTE.

5. The Authority adopted that theme again in [15] of its reasons.  It stated there its conclusion that the applicant was not a person of particular concern to the authorities and that he did not have any past or current links or connection with the LTTE.  While it accepted that the applicant might be viewed as a source of useful information and questioned more often than others, it did not accept that such questioning reached the threshold for persecution. 

6. Importantly, the Authority did not accept that the applicant had been detained in early 2012, and found that the evidence before it did “not support a finding that since 2009 the applicant has been subjected to surveillance, monitoring, harassment, threats or questioning” that might amount to persecution.  Critically, it found that the evidence did “not indicate that there is a real chance that this situation would change in the reasonably foreseeable future”, and it was on the basis of those findings that the Authority found that the applicant was not at risk of harm of any kind because of real or suspected links to the LTTE.

7. That finding was, in effect, that the Authority was not satisfied that the applicant would be detained, or there was any risk that the applicant would be detained in Sri Lanka.  That reasoning was based partly upon the DFAT reports about the reduction in arbitrary arrests and detentions referred to in [11] and partly because of its assessment of the applicant’s own claims and what it had accepted had occurred in the past.  On the basis of that understanding of the Authority’s reasons, the article of Julian Borger, dated 13 August 2015, had little, if any, ongoing relevance.

8. That is because that article and the report it refers to, as I have summarised above, focused upon the treatment of Tamils in detention.  It was not necessary for the Tribunal to consider what might occur to the applicant in detention because it was not satisfied that there was a real risk that the applicant would be detained.  Indeed, it appears from [11] that the Authority accepted that there was ongoing torture and mistreatment in detention; however, the analysis of the article in light of the reasoning of the Authority suggests two things.

9. First, I cannot infer that the Authority overlooked that material simply because it was not necessary to the Authority’s conclusion; and secondly, even if it had overlooked the material, I would not be satisfied that it fell into jurisdictional error in doing so.  For those reasons, in spite of my initial impression about the Authority’s reasons, I would reject the first and second grounds. 

10. The third and fourth grounds are to the effect that the Authority erred by accepting that the applicant had a problem with the authorities but did not pay attention to that and that it failed to understand the current situation in Sri Lanka.

11. As I have explained, the Authority did accept, to some extent, the applicant’s claims as to the past harm that occurred to both him and his father but then assessed, on the basis of its understanding of the current situation in Sri Lanka, that there was no real risk of significant harm or serious harm.  There is no error in the approach taken by the Authority.  While the fact that a person has been harmed in the past is relevant to whether or not they might be harmed in the future, it is not determinative of that question.

12. The Authority was obliged to consider the current and possible future circumstances in Sri Lanka in light of both the past and current circumstances on the information before it and its statement of reasons reveal that it did just that.  The assertion that the Authority failed to understand the current situation in Sri Lanka may well be correct.  It may be, as the applicant says, that the circumstances there are not safe for him; however, what the Court is restricted to considering is whether the Authority made its decision based upon findings and inferences of fact that were available on the material before it.

13. So long as it does that, then even if it is wrong, it has properly fulfilled its obligation to review the delegate’s decision.  In my view, for the reasons given by the Authority as summarised above, its findings were open on the material that it referred to.  For those reasons, I would reject grounds 3 and 4. 

14. It remains to consider some of the grounds in the affidavits relied upon by the applicant.  In particular, the grounds in the first annexure to the affidavit of 28 August 2016. 

15. Leaving aside some of the submissions that are clearly addressed to the merits of the Authority’s decision and the grounds that I have already dealt with, there remain two grounds.  The first is in [2.d] of annexure 1 to that affidavit, that is, that the Authority erred because it did not apply the UNHCR Guidelines as the applicant belonged to a social group of young Sri Lankan Tamils living in the North and East of the country with a perceived connection with the LTTE.  At [15] of the Authority’s reasons it did indeed refer to and apply the UNHCR Guidelines. 

16. The difficulty for the applicant is that, contrary to his claim, the Authority did not accept that the applicant had a perceived connection with the LTTE.  For that reason, the ground in [2.d] is not made out. 

17. In [2.f], the applicant says that reference is made to the Authority’s “decision in folios 12, 13, 14, 15, 17, 18.1, 20.1 and 23”, which he says points to the Authority “not following the evidence submitted in a proper manner”.

18. On one view, that could be taken to be an assertion that the Authority did not have regard to certain evidence; however, in the absence of any particulars or further explanation and having regard to those paragraphs themselves in the Authority’s reasons, ultimately what is complained about in [2.f] is that the Authority made wrong findings of fact.  As I have tried to explain, the Authority is entitled to make wrong findings of fact so long as those findings are open on the material before it. The Court simply cannot interfere at that level of the Authority’s decision-making powers. 

19. To do so would be to take over its powers and to ignore the distinction between a court and an administrative decision-maker.  For those reasons, on a proper understanding of [2.f] in the applicant’s affidavit, this ground too is an attack on the merits of the Authority’s decision which has to be rejected. 

20. Apart from those grounds, as I have noted, the applicant’s submissions both in writing and oral at the hearing addressed the question whether the applicant was in fact a refugee or otherwise owed protection by Australia.  That is a matter left to the Authority by the Act and so cannot support the relief that the applicant seeks. 

Conclusion

1. For those reasons, I will dismiss this application.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     27 April 2018

Status of Refugees (1967).