BOZ16 v Minister for Immigration
[2017] FCCA 501
•17 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOZ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 501 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal fell into error by failing to adequately address an integer of the applicant’s claim – whether the Tribunal erred by failing to provide sufficient reasons – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 425 |
| Cases cited: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] 144 FCR 1; [2004] FCAFC 263 |
| Applicant: | BOZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1647 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 17 February 2017 |
| Date of Last Submission: | 17 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 17 February 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S. Hodges, Hodges Legal |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1647 of 2016
| BOZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
Background
The applicant is a citizen of Sri Lanka who arrived in Australia on 18 May 2012. On 22 August 2012, he lodged an application for a protection visa. Amongst other claims, the applicant claimed that he feared persecution by the authorities in Sri Lanka because he had worked as a nurse with the non-government organisation Médecins Sans Frontières (“MSF”), which means Doctors without Borders, in an area which had been controlled by the Liberation Tigers of Tamil Eelam (“LTTE”). On 18 October 2012, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal[1] for review of that decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
On 23 September 2013, that Tribunal made a decision affirming the decision of the delegate. However, by orders made by consent in this Court on 13 July 2015, that decision was set aside and the matter remitted to the Tribunal for consideration according to law. Upon remittal, the Administrative Appeals Tribunal conducted the review. In accordance with s.425 of the Migration Act 1958 (Cth), the Tribunal invited the applicant to attend a hearing which took place on 16 February 2016. The Tribunal made its decision on 31 May 2016 affirming the decision of the delegate. The applicant now seeks judicial review of the Tribunal’s decision.
Consideration
There are two grounds in the amended application filed by the applicant with leave at the hearing. The first is that the Tribunal fell into error in failing to properly or adequately address an integer of the applicant’s claim, namely, the claim relating to the fear arising from the applicant’s work with MSF. The second ground is an alternative to the first, namely, that the Tribunal did not give sufficient reasons for rejecting the claim.
In his written submissions, the applicant focused upon the particular aspect of the claim that he had received an enhanced professional reputation because of his work with MSF and for that reason had given rise to unpopularity with the “other side”. In oral submissions at the hearing, the solicitor for the applicant raised another matter. He said a particular aspect of the claim relating to MSF that had not been dealt with arose from the fact that MSF had:
(i)a predominant workforce of non-Sri Lankans; and
(ii)had left Sri Lanka in 2012.
This, it was submitted, gave rise to an increased adverse profile to the applicant as he was a Sri Lankan and left behind without the protection of MSF from the interest of the authorities.
The claim concerning the MSF was dealt with by Tribunal in two different respects. The first was in respect of the criterion in sub-s.36(2)(a) of the Act which I will call the refugee criterion; and the second was in respect of the criterion in sub-s.36(2)(aa) of the Act which I will refer to as the complimentary protection criterion.
Refugee Criterion
The Tribunal dealt with the refugee criterion first. It accepted that the applicant had worked for MSF between 1995 and 2003 and that during the period he provided assistance to the wounded in government-controlled areas and LTTE-controlled areas.
The Tribunal also accepted that the applicant worked for MSF at a time when he was employed by the Government of Sri Lanka, and that the work he undertook with MSF was engaged in with the knowledge of and approval by the employer. The Tribunal then dealt specifically with the claim concerning the MSF at [78] through to [82]:
[78]I consider the applicant's claims to be of adverse interest to the Sri Lankan authorities are undermined by the fact that, up until he left Sri Lanka, he was continuously employed by the GoSL[2] for over two decades. [The applicant] has confirmed that when he worked as a nurse for [town] hospital and [district] hospital he was employed by the GoSL. At the hearing [the applicant] clarified that he had worked for MSF between 1995 and 2003, not 1995 and 2005 as previously stated in his statement of claims. His evidence indicates that he worked for MSF with the knowledge and approval of the GoSL and, at the time he worked for MSF, he was an employee of the GoSL. Despite claiming that he was tortured and mistreated by the authorities sometime between 2009 and 2011, [the applicant’s] own evidence was that he continued to work as a nurse, employed by the GoSL, until shortly before he left Sri Lanka.
[2] Government of Sri Lanka.
[79]When asked whether he had any problems because he worked for MSF between 1995 and 2003, [the applicant] gave evidence that if he had just been working as a nurse and not working for MSF he would have been a normal individual and nobody would have noticed. He gave evidence that because he worked for MSF he became someone - to civilians and the authorities. He said he became 'popular individual who had some medical expertise'. When it was put to [the applicant] that working for MSF had enhanced his professional reputation, he agreed this was correct. When I observed that this seemed like a good thing, he said the side who were seeking his help were praising him and the other side identified him as someone who was helping someone who they oppose. I accept that members of his community may have asked [the applicant] about his work for MSF; I am not persuaded he was ever of any adverse interest to the Sri Lankan authorities for this reason.
[80]When I put to [the applicant] that his evidence to the Tribunal suggested that the authorities would have any adverse interest in him because he worked for MSF between 1995 and 2003, he replied it did not directly affect him but that particular association and his performance went against him later. Asked to clarify what he meant, he said that MSF did not have a good reputation - they were taken off from performing their duties at the latter part due to the fact they suspected they were, indirectly, helping the LTTE or helping their wounded. He said this perception of the authorities fell on him because he became a popular individual and so when he went through the checkpoints he was watched. I have considered this evidence. Although MSF operated with the approval and knowledge of the Sri Lankan authorities between 1986 and 2003, there is evidence that the operations of MSF were viewed with some suspicion. For example, when MSF-France explored launching their activities in Sri Lanka again in 2006, they encountered difficulties, which are described here:
... Despite support from the local authorities and the Ministry of Health, requests for import licences, visas and authorisations to travel within the country got lost in a bureaucratic maze. As failure followed failure, it became clear that no decision could be taken without the approval of the Ministry of Defence and the president's entourage, whose grip on the state apparatus was tightening.
Starting in July 2006, the Ministry of Defence had indeed restricted access to the rebel zones affected by fighting (designated “uncleared areas”) to the ICRC[3] and selected UN agency teams that were only allowed short visits. Other aid organisations had been asked to work in government-controlled zones behind the lines. Failing to negotiate special status, comparable to that enjoyed by the ICRC and UN[4] agencies, the French section decided to exert media and diplomatic pressure. On 9 August 2006, it published a press release denouncing the murder of the ACF[5] workers and the “lack of medical help [for] tens of thousands of people living at the heart of the military offensive”. A week later, it organised a series of bilateral meetings with western ambassadors and the peace process co-presidents, feeling that the latter “had the ear of the government.” In late August, MSF-France managed to meet with Basil Rajapaksa, special adviser to the president, and Gotabaya Rajapaksa, secretary of defence. Although the president's two brothers assured MSF that it was welcome to work in hospitals designated by the Ministry of Health, they lost their tempers when the head of mission demanded access to rebel zones. MSF was accused of partiality towards the LTTE and of “wanting to tell the government what to do”.
[81]In this context, I have considered the applicant's evidence that he had trouble at the checkpoints in Sri Lanka. Before the Tribunal he said he was detained at the checkpoints for up to five hours. He told the Tribunal that when he was working for [district] hospital he had a lot of trouble passing through checkpoints. He said if he passed the checkpoints and went to work once he would only return after a week. He said as long as they were inside the hospital they were secure but outside of the hospital there was no security. He said government employees and normal people - everybody - had to go through the checkpoints. I noted he would have had identity documents identifying him as a government employee and he showed me the document that he used. He said even if you show it they would throw it and not really bother about it. However, as I put to [the applicant], it is difficult [sic] accept why, if he was an employee at a government-run hospital, he would have problems passing through government checkpoints. He responded that they do not care if you work for the government, so long as you are Tamil their perception is that these Tamil people are supporting the LTTE or they are the LTTE. When asked what problems he had at the checkpoints getting to and from work at [district] hospital, he said they accused him of helping LTTE and they were aware that he was in the LTTE controlled area. He said they strongly felt he was helping the LTTE.
[82]I put to [the applicant] that [sic] couldn't find country information that indicated that people who worked for MSF as nurses were targeted by the GoSL or paramilitary groups and invited the applicant [sic] provide country information that did support this claim. [The applicant] referred to a doctor [Dr T] and described him as a government employee who fled abroad. The Tribunal accepts that [Dr T] was amongst a number of doctors who were present in the north of the [sic] Sri Lanka who have since fled Sri Lanka after being detained and then forced by the Sri Lankan authorities to refute allegations of war crimes in the final stages of the conflict between the LTTE and the GoSL. As I discussed with [the applicant], while the situation of [Dr T] is clearly distinguishable from the circumstances of the applicant, I acknowledge the broad point that government employees providing medical services may become of adverse interest to the Sri Lankan authorities if their actions upset the Sri Lankan authorities. Further, as noted above, there were some tensions between MSF and the Sri Lankan authorities. However, as noted above, [the applicant’s] evidence indicates he stopped working for MSF almost a decade before he left Sri Lanka and, when he worked for MSF, he was an employee of the GoSL and his employers knew about, and approved of, his work for MSF. Significantly, after [the applicant] stopped working for MSF in 2003 he was continuously employed as a nurse by the GoSL until he left Sri Lanka in May 2012.
(Citations omitted)
[3] International Committee of the Red Cross.
[4] United Nations.
[5] Action Contre La Faim.
The Tribunal later returned to the conclusions in respect of those claims at [100] and [101] of its reasons:
[100]For all the reasons that are set out above, I have reached the conclusion that the applicant’s claims that he was of adverse interest to the Sri Lankan authorities and paramilitaries in Sri Lanka for reasons relating to his work as a nurse are not credible. Specifically I do not accept that [the applicant] was ever detained or mistreated by the Sri Lankan authorities as claimed. As noted above, his evidence about how, when and why he was detained and mistreated by the Sri Lankan authorities has shifted significantly over time. On the evidence before me, I do not accept [the applicant] is of adverse interest to the Sri Lankan authorities for any of the reasons claimed. I do not accept that [the applicant] was ever required by the LTTE to provide services for wounded fighters as claimed or that he ever knowingly provided treatment to LTTE members at [district] hospital or that he is now, or ever was, of adverse interest to the Sri Lankan authorities because they believed he provided medical assistance to members of the LTTE. I do not accept that [the applicant] was detained and mistreated by the Sri Lankan authorities and associated paramilitary groups sometime between 2009 and 2011 for reasons relating to his work for MSF between 1995 and 2003.
[101]I do not accept that [the applicant] was, or is, or [sic] any adverse interest to the authorities or to paramilitary groups working in his area because of his work as a nurse at either [district] or [town] hospital or because he worked with MSF between 1995 and 2003. I am of the view that this ongoing employment as a nurse in a government-run hospital and his ability to travel in and out of Sri Lanka indicates that the authorities did not have any adverse interest in his activities as a nurse. While it is possible that [the applicant] may have faced delays and have been questioned at checkpoints he had to pass through on the way to work, I am of the view that he has embellished his evidence about the difficulties he faced at the checkpoints. I do not accept that [the applicant] was ever personally targeted at the checkpoints because of the work that he was doing as a nurse at [district] hospital, which was a government-run hospital, or because of his previous work for the MSF, or because the authorities suspected he was involved in treating the LTTE, or because members of the community asked him about his work for MSF.
Two things may be noted in respect of the first of these passages. First, is that the Tribunal recorded accurately each of the allegations made by the applicant in support of his claim to fear harm as a result of his connection with, or his work for MSF in the period 1995 to 2003. For example, it recorded his evidence at [79] that, “if he had just been working as a nurse and not working for MSF he would have been a normal individual and nobody would have noticed”.
The Tribunal also recorded the evidence of the applicant at the hearing that “the side who were seeking his help were praising him and the other side identified him as someone who was helping someone who they oppose”. This is one of the matters that the applicant alleges now that the Tribunal failed to deal with.
The second thing to note is that the Tribunal, having referred expressly to each of those matters, made findings that it was not persuaded that the applicant had ever been of adverse interest to the Sri Lankan authorities for reasons connected with the MSF: see [79].
Contrary to the suggestion in the second ground, that is a very clear statement of the reason for which the Tribunal did not conclude that the applicant faced any well-founded fear of persecution for reasons of that connection with the MSF.
Importantly also, is the Tribunal’s clear statement at [82] that one of the matters that was significant to the Tribunal’s conclusion was that, after the applicant had stopped working for MSF in 2003, he was continuously employed as a nurse by the Government until he left Sri Lanka in May 2012. It is true, in these passages that the Tribunal does not deal with what the applicant now says was a claim made by him that he faced increased harm by the fact that MSF left in 2012 with all its non-Sri Lankan workers.
However, in my view, this claim was not made expressly by the applicant; and it did not arise at all on the material. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] 144 FCR 1; [2004] FCAFC 263, the Full Court of the Federal Court of Australia said at [58]:
...a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
The claim advanced for the first time by the applicant’s solicitor on the day of the hearing required some constructive or creative activity by the Tribunal. Even then, in my view, it would not have been an obvious claim. For that reason, it was not something of which the failure to consider by the Tribunal resulted in any jurisdictional error.
Complementary Protection Criterion
In dealing with the complementary protection criterion, the Tribunal addressed the MSF claims at [116]:
I do not accept that [the applicant] was of any adverse interest to the Sri Lankan authorities at the time he travelled to Australia. I have considered his evidence that he became well-known in his area because he worked for MSF and that he was imputed with a pro-LTTE opinion because he was a Tamil and had dark skin. For the reasons set out above, I do not accept that he was ever of adverse interest to the Sri Lankan authorities because of his experiences or work as a nurse in Sri Lanka. While I accept that [the applicant] worked as a nurse for MSF between 1995 and 2003 as claimed and travelled into LTTE controlled areas in the course of this work, he did so with the knowledge and approval of his employer, the GoSL, and I have rejected his claims that he was ever of adverse interest to the Sri Lankan authorities or the paramilitaries for any of the reasons claimed. I do not accept that, if he returns to Sri Lanka, there is a real chance that he will be imputed with a pro-LTTE opinion for any of the reasons claimed.
These findings rely essentially on the conclusions and reasons given earlier by the Tribunal in its reasoning connection with the refugee criterion. For that reason, I conclude that:
(1)the Tribunal dealt with the claim as it was made, insofar as the applicant relied upon his connection with MSF; and
(2)the Tribunal gave clear and understandable reasons for its conclusions in that respect.
It is unnecessary in those circumstances to deal with the question whether a failure to provide an adequate statement of reasons, itself, amounts to jurisdictional error.
For those reasons, neither of the grounds in the amended application is made out and the application must be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 March 2017
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