BMV15 v Minister for Immigration

[2018] FCCA 377

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMV15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 377

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – whether the Tribunal erred in law or failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2), 425, 425A

Cases cited:

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

Applicant: BMV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1711 of 2015

Judgment of: Judge Jones

Hearing date: 18 October 2017

Date of Last Submission: 18 October 2017

Delivered at: Melbourne

Delivered on: 23 February 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms Koya of DLA Piper Australia

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The Application for judicial review filed on 24 July 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs in a fixed amount.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1711 of 2015

BMV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. This decision concerns an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”), dated 28 June 2015 affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 13 December 2013 refusing to grant the Applicant a Protection (Class XA) visa (“the visa”). The Tribunal’s decision is at Court Book (“CB”) 198-216.

2. The material before the Court is the Applicant’s application for judicial review filed on 24 July 2015, the Minister’s Outline of Submissions filed on 5 October 2017and the Court Book.

3. The Applicant is a male citizen of Sri Lanka, of Tamil ethnicity and Hindu religion.

4. The Applicant arrived in Australia on 30 July 2012 as an unauthorised maritime arrival, at the Cocos Islands (CB 90). The Applicant applied for the visa on 18 December 2012 (CB 2-27).

5. The Applicant’s claims for protection were set out in his statutory declaration that accompanied his visa application, and can be summarised as follows (CB 49-53):

   a)the Sri Lankan government is repopulating Tamil areas with Sinhalese people and confiscating Tamil land, as well as destroying their temples, mosques and churches;

   b)in 2000, his brother was forcibly taken by the Liberation Tigers of Tamil Eelam (“LTTE”) and he has no information or knowledge of his brother’s whereabouts since that time;

   c)the Applicant and his family were placed into a camp by the Sri Lankan Army (“the SLA”) from 2009 until 2010;

   d)after leaving the camp, he faced ongoing questioning from the SLA as to whether he was associated with the LTTE. The Applicant claimed to have been interrogated once a week for two years, including being taken to a camp to be interrogated; and

   e)the Applicant is of ongoing interest to the authorities due to his brother’s involvement with the LTTE, and he feared that he would be arrested and killed by the police, the Criminal Investigation Department (“the CID”), the Eelam People’s Democratic Party, and the SLA.

6. The Applicant’s migration agent provided written submissions in support of the visa application on 15 September 2013 (CB 65-78). The Applicant’s migration agent submitted, on behalf of the Applicant, that he feared harm on the basis of his Tamil ethnicity, his actual or imputed political opinion as a perceived sympathiser and/or supporter of the LTTE, his status as a failed asylum seeker, and as a result of his illegal departure from Sri Lanka.

7. The Applicant’s application for the visa was refused by a delegate of the Minister on 13 December 2013 (CB 89-108).

8. The Applicant applied to the Tribunal for review of the delegate’s decision on 17 December 2013 (CB 109-136). The Applicant’s migration agent provided written submissions to the Tribunal on 23 April 2014 (CB 143-164).

9. The Applicant appeared at a hearing before the Tribunal on 17 April 2015 (CB 179-182) and his representative provided further written submissions following the hearing on 17 April 2015 (CB 186-194).

10. The Tribunal made its decision on 28 June 2015, affirming the delegate’s decision to refuse to grant the visa.

The Tribunal decision

1. The Tribunal set out the background information before it (CB 199 at [1]-[4]) and identified the relevant law (CB 199 at [5]-[19]). The Tribunal identified the Applicant’s claims (CB 201-202 at [22]-[29]) and the submissions by the Applicant’s migration agent that the Applicant fears harm because of his ethnicity as a Tamil, his actual and imputed pro-LTTE opinion, and his membership of the particular social group of failed asylum seekers (CB 202 at [28]).

2. The Tribunal set out the Applicant’s evidence given at the hearing, summarised as followed:

   a)the Applicant and his family lived in an LTTE controlled area until September 2008 before being taken to a camp by the SLA (CB 202-203 at [31]). The Applicant’s older brother was taken by the LTTE when the Applicant was six years old, and they later were told that he died in battle during the war (CB 203 at [34]);

   b)the Applicant was questioned periodically by the CID after returning home (CB 203 at [35]), and recalled an incident where the SLA grabbed the hand of a girl next door to him (CB 204 at [39]); and

   c)enquiries had been made about the Applicant while he was in Australia (CB 204 at [42]), and he could be killed on return to Sri Lanka. The Applicant said that he would have difficulty on return because his brother helped the LTTE (CB 204 at [43]).

3. In respect of the Applicant’s claim relating to perceived links with the LTTE, the Tribunal accepted that the Applicant’s brother was forcibly recruited by the LTTE, and killed during the war, or before 2002, or that at least his whereabouts have been unknown since before 2002 (CB 205 at [47]).

4. The Tribunal cited country information from the Department of Foreign Affairs and Trade (“DFAT”) (CB 205-206 at [48]-[49]) and other sources of country information (CB 207 at [57], CB 208 at [64], CB 209-210 at [69]-[74]).

5. The Tribunal accepted that upon return to their home area following the Sri Lankan Civil War, the Applicant, his father and his brother were questioned regarding their links to the LTTE. The Tribunal further accepted that the Applicant’s father told the Sri Lankan authorities that his son had been recruited by the LTTE and killed during the war. However, the Tribunal found that the Applicant exaggerated the extent of the questioning of the Applicant by the SLA in his application for the visa, and preferred the version he provided to the Tribunal (CB 206 at [50]).

6. The Tribunal concluded that neither the Applicant, nor his family members, have ever suffered serious or significant harm as a result of any perceived link to the LTTE, or because his brother fought for the LTTE, nor would they in the reasonably foreseeable future (CB 207 at [55]-[56]).

7. The Tribunal then considered the “Sinhalisation” of the Applicant’s home area. The Tribunal noted that the Applicant has never had any land confiscated, and that he and his family were able to return to their home and the land that they occupied before the Sri Lankan Civil War. The Tribunal concluded that the Applicant has not been affected by any program of Sinhalisation in the past and that there is no real chance that he would be affected in the reasonably foreseeable future. The Tribunal therefore found that any fear the Applicant had of persecution for this reason was not well-founded (CB 207 at [58]).

8. The Tribunal considered the Applicant’s claim to fear harm on the basis of his Hindu religion. The Tribunal found that the Applicant has not been prevented from practicing his Hindu religion, and would not be seriously harmed by reason of his Hindu religion in the future (CB 208 at [61]).

9. The Tribunal considered the Applicant’s Tamil ethnicity. In doing so, the Tribunal considered country information (CB 208 at [63]-[64]). The Tribunal found that, given the extensive monitoring and questioning he had undergone, the authorities are satisfied that the Applicant does not have links to the LTTE (including by reason of his brother’s connection to the LTTE), and that he would not be imputed with a pro-LTTE or anti-government opinion by reason of his Tamil ethnicity (CB 208 at [65]). The Tribunal found that any fear of persecution on the basis of the Applicant’s Tamil ethnicity was not well-founded (CB 208 at [66]).

10. The Tribunal noted the Applicant’s claim that there would be a re-emergence of the war, and found there was no evidence that there is a real chance that this would occur in the reasonably foreseeable future (CB 209 at [67]).

11. In respect of the Applicant’s claim regarding his status as a failed asylum seeker, the Tribunal cited country information (CB 209-210 at [70]-[71]) and considered that the country information indicated that it is those who are suspected of supporting the LTTE who might be at risk on return, and that the information did not establish that that Sri Lankan authorities regard asylum seekers as LTTE supporters (CB 210 at [73]). The Tribunal accepted that, while the Applicant might be questioned on return as a failed asylum seeker, in accordance with standard procedures, any questioning did not amount to serious or significant harm (CB 210 at [74]). The Tribunal found that the Applicant did not have a profile which would result in him being detained, tortured or otherwise harmed (CB 211 at [75]-[76]).

12. In respect of the Applicant’s unlawful departure from Sri Lanka, the Tribunal accepted that the Applicant might be charged with an offence under the Immigrants and Emigrants Act 1948 (Sri Lanka). However, the Tribunal noted that the Applicant was a minor when he left Sri Lanka, and that DFAT country information indicated that minors are not charged with these offences. The Tribunal still considered the outcome if the Applicant were to be prosecuted, and concluded, on the basis of country information, that the Applicant would likely receive a fine (CB 211-212 at [79]-[82]). The Tribunal found that any prosecution of the Applicant would be the result of a law of general application, and would not amount to persecution for this reason (CB 212 at [83]).

13. When considering the Applicant’s claims under complementary protection provisions (s.36(2)(aa) of the Act), the Tribunal accepted that the Applicant may be detained in remand for one to several days (CB 213 at [88]) and that this would be in poor prison conditions (CB 213 [89]). The Tribunal considered whether being detained in these conditions met the requisiste definitions of “significant harm” pursuant to s.36(2)(aa) of the Act, and found that it would not (CB 213-214 at [91]-[97]). The Tribunal found that in relation to the poor prison conditions in Sri Lanka, there would be no intention on the part of the authorities to harm the Applicant, were the Applicant to be detained (CB 214 at [97]). In any event, the Tribunal found that the likelihood of a prison sentence being imposed was remote (CB 214 at [98]). The Tribunal found that any fine imposed under the Immigrants and Emigrants Act (Sri Lanka) would not amount to significant harm, and was satisfied that the Applicant would be able to pay any fine imposed (CB 215 at [99]).

14. The Tribunal then considered the Applicant’s claims cumulatively, and was not satisfied that they gave rise to a real chance of persecution or a real risk of significant harm (CB 216 at [104]-[105]).

15. The Tribunal concluded that the Applicant did not satisfy

    
    

    ss.36(2)(a) or 36(2)(aa) of the Act, and affirmed the decision under review (CB 216 at [106]-[109]).

Judicial review

1. Ground one of the Applicant’s application is as follows:

   1. The decision of the Tribunal:

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

   (b) denied the applicant procedural fairness.

2. The Applicant’s second ground of review of his application asserts that he has made an application for Legal Aid. The Applicant informed the Court that Victoria Legal Aid (“VLA”) had told him, about a month ago, that they could not continue with his case. This ground cannot give rise to jurisdictional error.

3. The Applicant appeared self-represented at the hearing before the Court, and was assisted by an interpreter in the Tamil and English languages. As the Applicant was self-represented, I explained the nature of judicial review and its difference from a merits review as conducted by the Tribunal.

4. With respect to Ground 1(a) of his Application, the Applicant said that if he was required to return to Sri Lanka, he would face serious harm. The Applicant said that he told the Tribunal, in detail, that he would face serious problems if he returned to Sri Lanka. The Applicant said that the Tribunal Member did not understand, because the Member was “not from the same country.”

5. With respect to Ground 1(b) of his Application, the Applicant informed the Court that he had nothing further to say.

Consideration

Ground 1(a) – Error of law

1. There is nothing in the Tribunal decision record which reveals that the Tribunal engaged in jurisdictional error.

2. I am satisfied that the Tribunal gave genuine consideration to all of the Applicant’s claims. Moreover, the Tribunal’s reasoning is logical and cogent. The fact that the Tribunal member was not from the same country as the Applicant is not a cause for jurisdictional error in circumstances where the Tribunal had recourse to a range of country information. In this case, the Tribunal considered the Applicant’s evidence carefully, and had recourse to country information in making its findings.

3. It is appropriate, however, to consider whether jurisdictional error arises from the Tribunal’s consideration of “significant harm” if the Applicant were to be detained in poor prison conditions on return to Sri Lanka.

4. Relevantly, the High Court decision of SZTAL v Minister for Immigration and Border Protection and SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 (“SZTAL”) considered the meaning of “intentionally inflicted” and “intend to cause” in s.5(1) of the Act. In particular, the issue before the Tribunal was “whether, in sending the appellants to prison, Sri Lankan officials could be said to intend to inflict severe pain or suffering or to intend to cause extreme humiliation” (SZTAL at [7]).

5. The majority in SZTAL held that the references to “intentionally inflicting” and “intended to cause” in s.5(1) of the Act concern the relevant person’s subjective state of mind; that is, that the person intended to produce a particular result, and that the result was the person’s purpose in doing the act. The plurality held (SZTAL at [27] per Kiefel CJ, Nettle and Gordon JJ):

   27. An intention of a person as to a result concerns that person's actual, subjective, state of mind.  For that reason, as the plurality in Zaburoni were at pains to point out, knowledge or foresight of a result is not to be equated with intent.  Evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn, but foresight of a result is of evidential significance only.  It is not a substitute for the test of whether a person intended the result, which requires that the person meant to produce that particular result and that that was the person's purpose in doing the act.

6. The High Court majority said (SZTAL at [29]):

   29.…evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention. In some cases, the degree of foresight may render the inference compelling.

7. The plurality held that “the Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict the requisite degree of pain or suffering or humiliation.” (SZTAL at [29]).

8. In the present case, the Tribunal specifically considered the question of whether the Applicant might be subject to intentionally inflicted harm. The Tribunal said (CB 213 at [93]):

   93. There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. Freedom from Torture reported on a number of claims of torture in 2012 and identified that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”. The tribunal has found, for the reasons set out above, that the applicant does not have a perceived association with the LTTE which would cause him to be targeted in the prison system. The evidence before the tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been subjected to pain or suffering by an intentionally inflicted act or omission intended to obtain information, a confession, to intimidate or coerce or for any other reason whilst on remand.

   (Footnotes omitted)

9. The Tribunal’s reasoning in relation to whether the Applicant would suffer “significant harm” was consistent with the approach in SZTAL, and discloses no jurisdictional error.

Ground 1(b) – procedural fairness

1. The procedural fairness provisions of the Act require the Tribunal to invite an applicant to appear (s.425 of the Act) and invite the applicant to appear by notice that sets out particular information (s.425A of the Act).

2. The Applicant was invited to give evidence and present arguments relating to the issues with the decision under review, by email correspondence to his migration agent on 27 March 2015 (CB 165-169). This was done in accordance with the requirements of s.425 of the Act. The Applicant attended the Tribunal hearing on 17 April 2015 assisted by his migration agent (who appeared by telephone link), and with the assistance of an interpreter in the Tamil and English languages.

3. Accordingly, I am not satisfied that the Applicant was denied procedural fairness.

Conclusion

1. For the reasons set out in this judgment, an Order will be made dismissing the Application. A further Order will be made for the Applicant to pay the Minister’s costs in a fixed amount.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:  

Date:  23 February 2018