BMW16 v Minister for Immigration
[2017] FCCA 369
•10 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMW16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 369 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal was unreasonable in making a finding regard the applicant’s claim of being singled out for lobbying the reconstruction of a temple – whether the Tribunal’s finding was incorrect based on the evidence and claims before it – whether the Tribunal failed to inform the applicant at hearing under s.425 of the Migration Act 1958 (Cth) about evidence in regards to the “Sinhalisation” of Hindu Temples in Sri Lanka – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91R(1)(c), 424C, 425 |
| Cases cited: Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. |
| Applicant: | BMW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1556 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 15 February 2017 |
| Date of Last Submission: | 15 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Silva |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1556 of 2016
| BMW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who arrived in Australia on 20 June 2012 as an Irregular Maritime Arrival. He made an application for a protection visa on 14 November 2012. The applicant claims to fear harm based on his religious beliefs and political opinions.
A delegate of the Minister refused to grant the applicant a protection visa on 30 May 2014. On 26 May 2016, the Administrative Appeals Tribunal affirmed the decision of the delegate and the applicant now seeks judicial review of that decision.
Background
The applicant is an ethnic Tamil who resided in a Liberation Tigers of Tamil Eelam (“LTTE”) controlled area in the Trincomalee District. The applicant was required to give some assistance to the LTTE, at a minor level, which included lending his tractor to the LTTE once a month. The applicant and his father-in-law were extorted for money by the Sri Lankan Army (“SLA”) based on the assistance that the applicant had given the LTTE. The applicant claims that one of his sisters was forcibly recruited by the LTTE in 1992 and killed in 1997.
In July 2006, the applicant, his wife and three sons were forced to leave their village due to intensified fighting between the SLA and LTTE. The applicant’s wife’s family were the ancestral caretakers of a Temple in the applicant’s home village which was destroyed during the fighting in 2006. The applicant was an accountant and prominent figure for the temple and had been involved in protesting against the destruction of the temple. He claimed that he had been imputed with anti-Government political opinions due to his strong vocalisation concerning the SLA destruction of Hindu temples.
The applicant claimed that in July 2007, the SLA made his family return to his home village to live in a refugee camp and that their movements were restricted.
During this time, the applicant was told that the temple had been demolished and a Buddhist temple built in its place. The applicant visited the site in December 2008 when he was allowed to leave the refugee camp. In January 2009, the applicant visited a number of village officials concerning the temple’s destruction. The applicant claimed to have gone into hiding in approximately June 2009 after the abduction of 2 village leaders. The applicant stated that he feared that he would be abducted also.
In December 2010, the applicant along with many other Tamil Hindus attempted to enter the temple for a traditional ceremony. However, the group were prevented from doing so by a Buddhist monk. The applicant claims that the Buddhist monk threatened him personally and told the applicant that what had happened to the village leaders would happen to him.
In 2011, a friend of the applicant who was an SLA informer told the applicant that the army were going to take action against those involved in the temple ritual. The applicant claims that in early March 2012, approximately 22 people were taken by the SLA from his village to the army camp to be educated. Two of those people taken had been involved in the temple protests. After this, the applicant claims the SLA had been searching for him in his village however, he had been hiding in another village at that time.
The applicant attended a hearing conducted by the Tribunal on 23 February 2016 with his legal representative. On 26 May 2016, the Tribunal affirmed the decision of the delegate.
Tribunal’s decision
In making its decision, the Tribunal considered the independent country information as well as media articles from TamilNet provided by the applicant. It accepted the applicant’s claims that the temple had been destroyed and that a Buddhist temple in his village had been built in its place. The Tribunal further accepted that the applicant had been involved in protests about the destruction of the temple.
The Tribunal then turned to the applicant’s evidence concerning the community’s attempt to conduct a puja at the destroyed site, and his claim that a Buddhist monk told the applicant and other members of the community to leave the site. In considering this claim, the Tribunal did not accept that the applicant had been personally singled out and threatened by the Buddhist monk as other members of the temple committee had not been targeted or threatened.
Further, the Tribunal noted that despite the applicant’s evidence that he had been threatened, the applicant remained living in his house for some months without any specific threat being made to him. The applicant’s evidence to the Tribunal was that someone in Army intelligence warned him that he was at risk and being watched. In January 2012, the SLA rounded up and detained 22 people in the temple area; the applicant left Sri Lanka some two months later, in March 2012.
The Tribunal then considered the applicant’s claims regarding his family’s involvement in attempting to acquire land to rebuild the temple. The applicant explained to the Tribunal that he and his family had both given a “great deal of money” to rebuild the temple and had approached a local MP about acquiring the land to do so.
The Tribunal then turned to the question of whether the applicant would face a real chance or real risk of serious or significant harm as a result of his imputed political beliefs. In considering this question, the Tribunal had regard to country information. It held that there continued to be disputes about the Sinhalese attempting to take Hindu temples, and that within the Eastern provinces little progress had occurred in restoring temples. However, the Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm due to his religious beliefs or continued lobbying for the reconstruction of the temple upon his return to Sri Lanka.
The Tribunal accepted that the applicant had departed Sri Lanka illegally and that he would be questioned at the airport to establish his identity, charged under the Sri Lankan Immigrants and Emigrants Act for illegal departure and be brought before a court to apply for bail. Given that the applicant had sufficient means to send substantial funds to his family whilst he was in Australia, the Tribunal considered that he would be able to provide bail and be ensured of a quick release from any process relating to charges he might face.
The Tribunal found that any treatment of the applicant for his illegal departure would not be any different on account of his ethnicity, race or political opinion. For that reason, that treatment would not amount to systematic and discriminatory conduct as required by sub-s.91R(1)(c) of the Migration Act 1958 (Cth). In any event, the Tribunal found that none of the treatment the applicant may face upon his return would amount to serious harm.
The applicant raises two grounds in support of his application. The first is that the decision was unreasonable because it was based on a finding of fact that was not open on the material. The second is that the Tribunal failed to comply with s.425 of the Act. For the reasons that follow, both grounds must be rejected.
Consideration
Ground one
The first ground in the further amended application focuses on the finding by the Tribunal, at [68], that it did not accept “that the applicant was singled out for threats, harassment or mistreatment due to his role in lobbying for the temple reconstruction”. The first ground is set out below:
The Tribunal made jurisdictional error in that it was not open to the Tribunal to find and thus it was unreasonable (either manifestly or otherwise) in making the finding in CB 268 [68] that, considering the information cumulatively, it does not accept that the applicant was singled out for threats, harassment or mistreatment due to his role in lobbying for the temple reconstruction
The applicant argues that that finding was based on the Tribunal’s earlier conclusion that the applicant’s claim that he was personally singled out by the Buddhist monk: [59]. In the particulars to this ground, the applicant based the ground on the proposition that there was only one answer to the question whether the applicant was personally threatened: an affirmative one. In his oral submissions, counsel for the applicant added that the Tribunal had misunderstood the evidence about the threat.
It may be accepted that the Court will interfere with an administrative decision if that decision is one that could not reasonably have been reached: Buck v Bavone (1976) 135 CLR 110 at 118-119; [1976] HCA 24. Such a conclusion might be reached if the evidence or other material goes all one way: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137]; [1999] HCA 21 per Gummow J.
The task is more difficult however, where the focus is, as here, not on the ultimate decision but on anterior findings of fact, none of which is statutorily stamped as a precondition to the decision in question. In that case, a finding must be sufficiently important to the decision to show that the decision itself was affected by an error. Further, care must be taken not to impugn such fact finding too readily lest the cloak of unreasonableness be used to disguise what is, in truth, an attack on the merit of the finding.
Finally, it may be noted that there is a close analogy between this type of unreasonableness and review on “no evidence” ground. In that case, it is necessary to show that there was not a skerrick of evidence to support the relevant finding or decision. That is no easy task. To establish unreasonableness in the manner asserted by the applicant is no easier.
The applicant argues the Tribunal could only have reasonably concluded that he was singled out by the Buddhist monk. He relies on the following matters in his application:
…
(c)There was only one answer to the question whether he was personally threatened (see SZMDS[1]). That answer was in the affirmative for the following reasons:
[1] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16.
(i)At that time (October 2010) there were about 200 Hindu members (see 263[40]) who wanted to perform the puja ceremony. It would have been obviously seen as a public demonstration by the Hindus to regain some of the rights in relation to their religious worship. It would have been seen as a challenge to the authority of the Buddhist monk;
(ii)It would have been a daunting environment for a Hindu to dare to approach the Buddhist Monk with seven army officers standing by him (see 263[41) defying the orders of the Monk and to ask him permission to conduct the Hindu ceremony after the Monk refused to let the people in and wanted the loud speakers removed;
(iii)Since the Monk wanted to intimidate the Hindu community it was necessary for him to intimidate the spokesperson and who appeared to defy him;
(iv)There is no credibility issue as to whether the applicant did what he did. The Tribunal accepted that because it referred to his brother in law translating in Sinhalese what the applicant said to the Buddhist Monk in Tamil;
(v)Of that 200 people there, there would have been others who were involved in the administration of the temple, like the President of the temple committee, other members of the committee, the Hindu priest. See 266[59]. But it was only the applicant who in spite of his language problem had the courage to ask the Monk for permission in front of all the people, and the 7 army officers whose presence is intimidating to any Tamil. If the permission was given it could have resulted in loss of face for the Monk before the army officers, a setback for the Buddhist the ability to grab land and temple of the Hindus, and the opening up for the Hindu community an opportunity to recommence their lost right to worship. These factors show that it was applicant who was the predominant driving force behind that defiant effort by the Hindu community to worship there;
(vi)The Tribunal's reference at 263[59] to the applicant's brother in law who was translating into Sinhalese what the applicant said in Tamil, as someone who should be in more trouble with the Monk than the applicant himself is illogical and shows the unreasonable way the Tribunal made its factual finding. In fact, it is the reverse because the brother in law would have been looked upon much more favourably than the applicant by the Monk for his proficiency in Sinhalese because propagating Sinhala language along with Buddhism in Tamil areas is the motivation of the Buddhist monks and is well known universally;
(vii)The applicant was the person who organised the 2008 letter of protest to various political leaders and his was the first signature, even showing his ID number. The applicant was the first person to sign it, the Monk could have come to know that, the Monk could have believed that he was the driving force behind it;
(viii)The Monk threatened the applicant only after talking to the military personal and there is a strong possibility that he may have confirmed who the applicant was from the military officers, or at least it could be not be excluded as a reason;
(ix)The applicant did not stay in the village but lived away in [another village]; and
(x)He left [the other village] after 22 people related to the temple were rounded up in [his home village] and his whereabouts were inquired about from the shop keeper whose shop was opposite the applicant's house there, in which he wasn't living at that time.
Each of those matters supports the conclusion suggested by the applicant; however, they do not compel it. For example, the assertion (at (iii)) that the Monk wanted to intimidate the Hindu community is an inference that may be drawn from the claims. However, there was nothing about those claims that required them to be accepted by the Tribunal and there were other inferences able to be drawn. Further, even if it were accepted that there was a desire to intimidate the whole Hindu community, it is equally open to infer that the monk would have threatened the whole community. None of the matters relied upon by the applicant withstands any level of scrutiny. In fact, those matters only go to the merits of the Tribunal’s fact finding.
In any event, the simple logic employed by the Tribunal was that the applicant was only one member of a group of people on the temple committee and that none of the others had been threatened, not even the President of the temple.
It was that group which posed the threat to the monk and which had taken part in the protest. There was nothing, in the Tribunal’s view, that made the applicant stand out.
In these circumstances, it was unlikely that the applicant would have been singled out. That was a logical basis for a rejection of the claim to have been singled out. That is so, even though the applicant said something to the monk in Tamil. That was translated into Sinhalese by the applicant’s brother-in-law. The brother-in-law was understood by the monk, not the applicant, and yet no attention was given to him. It was open to infer that the monk would pay less attention to someone he did not understand.
The applicant argued that the Tribunal overlooked the fact that this claim had been consistently made throughout the visa application process. That fact might lend credibility to the claim but it does not, as a matter of law, require it to be accepted.
The applicant also argued that the Tribunal overlooked the fact that the applicant was the prime mover of the protest against the temple. However, the characterisation was first given to the claim by the applicant’s counsel at the hearing of this matter. It was not one advanced before the Tribunal.
Finally, the applicant argued that the Tribunal misunderstood the evidence he gave about the threat made by the Buddhist monk. In fact, the Tribunal correctly understood the evidence.
In his entry interview, the applicant says that the monk “didn’t say this to me directly, he said it to people who got to the temple area”. However, at the hearing when the Tribunal asked who the monk was threatening, the applicant said, “he showed me – he showed – he pointed at me and he specified my name”. The Tribunal accurately recounted this evidence at [41] of its reasons, “[h]e pointed at the applicant and named him”. This argument fails on the facts.
For those reasons, the first ground is rejected.
Ground two
At [63] of its reasons, the Tribunal stated that it accepted that there were continuing disputes about the “Sinhalisation” of Hindu temples. However, it noted that “there is no evidence before the Tribunal that any Tamil individuals have been harmed in disputes about Hindu temples in the Eastern provinces since 2013”.
The applicant argues that, in order to comply with its obligation under s.425 of the Act, the Tribunal was required to inform him at the hearing about this state of the evidence and to give him an opportunity to address it.
Section 425 provides:
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection(1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The applicant’s argument is, in effect, that s.425 of the Act requires the Tribunal to give the applicant a running commentary on the evidence before it: whether it accepts it, whether it is sufficient to support his claims, whether more evidence is required. The section does not require the Tribunal to do that: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48].
The second ground is rejected.
For all of those reasons, neither of the grounds in the application is made out and the application must be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 10 March 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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