BPR15 v Minister for Immigration

[2016] FCCA 1128

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPR15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1128

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: BPR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1815 of 2015

Judgment of: Judge Riethmuller

Hearing date: 18 April 2016

Date of Last Submission: 18 April 2016

Delivered at: Melbourne

Delivered on: 18 April 2016

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Ms Latif

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application filed 6August 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1815 of 2015

BPR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal with respect to review of a decision of a protection visa application. The decision runs for some 33 pages, setting out in detail the findings of the Tribunal.

2. The applicant applied for a protection visa in December 2012. The delegate refused the visa application in March of 2014. The applicant then sought review by the Tribunal, who dismissed his application in July 2015. The applicant then sought judicial review in this Court. 

3. The applicant is a Tamil man of Hindu faith. He comes from the Northern Province of Sri Lanka. He raised a number of concerns relating to his circumstances on the basis that he would be persecuted because of his race, an imputed political opinion, if he returns being a failed asylum seeker, and on the basis that he departed Sri Lanka illegally. The applicant raises only two grounds for judicial review that simply state: (a) the Tribunal’s decision is affected by an error of law; and (b) the Tribunal denied the applicant procedural fairness. 

4. The Tribunal traversed his claims in detail. With respect to his primary complaints concerning the attitude of authorities to him, the Tribunal ultimately concluded:

   72. The Tribunal has considered the claim that the authorities are interested in the applicant due to a claimed involvement with the LTTE and because of incidents that occurred in 2009 and 2012. The Tribunal does not accept that the authorities have an ongoing interest in the applicant, as discussed in the preceding paragraphs, arising from his activities in 2009 in the Kilinochchi region of Sri Lanka. Having not accepted that the authorities have an interest in the applicant, that he was not involved with the authorities in 2012, and that his mother was not harmed by the authorities in September 2012, the Tribunal has significant concerns with the new document from December 2014, so long after the applicant left Sri Lanka and so long after there had been any interest in the applicant, as claimed by him, in September 2012. That an arrest warrant would appear in such circumstances for ‘suspicious activities of terrorism’, given his age, the 5 ½ years after the end of the civil war, after the authorities provided him with a series of official documents, and after they showed no interest in him after releasing him from the IDP camp in 2010, is very difficult to accept. Given its significant concerns with these elements, the Tribunal has placed no weight on this document. The Tribunal does not accept that the applicant has been issued with an arrest warrant in Sri Lanka or that the authorities want to arrest him on return.

5. The Tribunal went on to consider whether he was at risk as a young Tamil male from the north, concluding:

   80. The Tribunal does not accept that the applicant, a young male Tamil from the northern regions of Sri Lanka, faces a real chance of serious harm because he is of Tamil ethnicity or as a male Tamil from the North. The applicant had some limited interaction with the LTTE, which is not unusual in an area that was under the control of the LTTE for a period of time. While in a refugee camp with his family the applicant had interaction with the authorities, who interviewed the applicant. This occurred on one occasion only. The authorities subsequently permitted the applicant and his family to leave the refugee camp. The Tribunal considers that the applicant is not a person, who simply because of his ethnicity, location in Sri Lanka, age or gender, will be targeted by the authorities for harm. The Tribunal finds that the applicant does not face a real chance of serious harm, now or in the reasonably foreseeable future, arising from the Convention reason of race, or membership of particular social groups arising from his race, age, location within Sri Lanka or gender. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

6. The Tribunal also considered whether he was at risk as a result of the Sinhalisation of the area, but concluded:

   83. While the Tribunal accepts that there have been challenges for the Tamil community in this area arising out of the changes to their economic opportunities and more competition from Sinhalese migrants to the area, the Tribunal does not accept that these have reached the level that would constitute serious or significant harm for the applicant, now or in the reasonably foreseeable future. The Tribunal does not accept that the Sinhalese influence in the region is a reason that the applicant would be harmed in the future, or would stop the applicant from working and supporting himself in the future.

7. The Tribunal went on to consider whether he had an actual or imputed political opinion in support of the LTTE, saying:

   91. The applicant is not a person to whom the UNHCR guidance references. The applicant is a man who has had very limited interaction with the LTTE previously, and in the view of the Tribunal, will not be accused of supporting the LTTE in the future. The applicant has done nothing to raise the concern of the Sri Lankan authorities that would lead them to consider him to be a threat because of any imputed pro-LTTE political opinion.. The Tribunal considers that just because the applicant is a young male Tamil from the North does not equate to an imputed political opinion that he is pro-LTTE in the view of the Sri Lankan authorities.

   92. The Tribunal does not accept that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future arising from any imputed pro- LTTE political opinion. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

8. The Tribunal then considered whether he had a claim on the basis of being a failed asylum seeker, saying:

   104. The Tribunal accepts on the basis of the country information provided that the applicant will be questioned by Sri Lankan authorities (including airport immigration officials or CID) at the airport on his return, to establish his identity and entry rights and due to the context of his illegal departure and return. However, having regard to his accepted circumstances, the Tribunal does not accept the applicant faces any real chance of being detained for questioning or otherwise targeted for harm – at the airport or in his home area - due to his race and/or identification as a failed asylum seeker, or any adverse real or imputed political opinion, or because of his illegal departure from Sri Lanka. The Tribunal further does not accept that the applicant’s age, appearance, innocence or lack of worldly experience would see him being targeted by the authorities on return to Sri Lanka. The Tribunal does not consider that the authorities would be concerned by these characteristics of the applicant or would seek to harm him because of these characteristics. Having regard to the cumulative accepted evidence, the Tribunal does not accept the applicant will be of adverse interest to the authorities on return to his home  area.  The Tribunal does not accept the applicant’s submission that the authorities would wait a period of time before seeking to harm him as the Tribunal does not accept that there is any reason for the authorities to want to harm him.

9. Finally, the Tribunal turned to consider whether he was at risk as a result of his illegal departure from Sri Lanka, in this regard saying:

   116. The Tribunal finds that the Immigration & Emigration Act applies generally to those who breach the provisions and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. The Tribunal considers that the laws are not selectively enforced. The Tribunal does not accept the submission that they are selectively enforced against failed asylum seekers, who are placed into the situation of having to depart illegally. The Tribunal considers that the laws are enforced against anyone who breaches them. Accordingly, the Tribunal finds that the Immigration & Emigration Act applies generally to those who breach the provisions, including the imposition of the penalties for breaching this Act, and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. The very process of determining if someone was in breach of the Immigration & Emigration Act, or has any other pending charges, which the applicant will be required to do on returning through the airport, is a process applied to all returnees from Australia to Sri Lanka. The Tribunal therefore find that the applicant's very brief remand by the authorities for questioning, and for the provision of pending bail will not itself constitute systematic and discriminatory conduct, that s.91R(1)(c) is not met and therefore the conduct is not persecution.

   117. The Tribunal finds the chances very remote that the applicant will be sentenced to any term of imprisonment due to his illegal departure. The Tribunal accepts that the applicant will face a financial penalty as prescribed under the Act. The Tribunal considers that the applicant will be able to pay the lawful financial penalty imposed for his illegal departure. The Tribunal finds that the applicant would pay any financial penalty imposed under Sri Lankan law for his illegal departure, or therefore, that there is any real chance or real risk he will face serious or significant harm in the reasonably foreseeable future deriving from any legal penalty being imposed.

10. The Tribunal also turned its mind to whether or not the complementary protection provisions of the Act may assist the applicant, concluding:

    124. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of serious harm in Sri Lanka arising from his race, age, location in Sri Lanka, imputed political opinion, or as a member of a particular social group of either failed asylum seekers or returnees from a Western country or persons who left Sri Lanka illegally.

11. At the hearing before me, the applicant articulated four complaints that he raised with respect to the Tribunal. The first was that when he was 19 years of age, he was taken by the LTTE and tortured. This claim does not appear to have been raised by the applicant in the past. 

12. As this claim was not raised when making the visa application or before the delegate or the Tribunal, it is not a matter that I can take into account, that is, it is not an error of law by the Tribunal to fail to deal with a claim that was not raised before it.

13. The second matter that the applicant raises is a claim that during the hearing, he gave the member a copy of a warrant for his arrest and he alleges that the member threw that document away. He said that this resulted in the Tribunal not taking the document into account and that it affected him mentally because of the Tribunal’s conduct. The tape of the Tribunal hearing was not produced, nor a transcript. The court book contains a copy of the document in both English and Sinhalese at p.310. The Tribunal member discusses the document at paragraph [71], saying:

    71. This culminates in the Tribunal’s consideration of the document that is purportedly an arrest warrant for the applicant. The Tribunal at the hearing expressed its concern about the provenance of this document, appearing as it had in unusual circumstances at the hearing. The Tribunal expressed its concern that the document would appear in the manner that it had arrived, that his mother had held onto it for months, before sending it to the applicant, then the applicant holding onto it and presenting it for the first time at the hearing. The Tribunal expressed its concern that the authorities would be seeking the applicant in December 2014 for activities he was involved in so long ago, and questioned his statement that it was because he was a junior member of the LTTE. The Tribunal questioned the genuineness of the document in all the circumstances; including noting that there was country information that document fraud was prevalent in Sri Lanka[1].

    [1] DFAT Country Report Sri Lanka February 2015

14. It does not appear, on the evidence before me, that the Tribunal member behaved in the way alleged. It is clear that the Tribunal member squarely addressed their concerns about the document to the applicant at the hearing; it may be that the applicant has misinterpreted this questioning. It appears to me that it was important that the Tribunal member squarely confront the applicant about their concerns with respect to the document to ensure he had a fair hearing.

15. The third matter that the applicant raises is that since he has been in Australia, the Sinhalese authorities have assaulted his mother and taken photos and documents from his home. The Tribunal member identifies these issues, in part at least, at paragraphs [47] to [49], where they say:

    47. The applicant also provided a letter from a doctor dated 10 December 2012 pertaining to injuries suffered by the applicant’s mother on 20 September 2012. The Tribunal considers that this is the same event that the applicant claimed occurred on 19 September 2012 in his statement. The Tribunal takes no issue with this minor discrepancy. The letter is written in English, which the applicant confirmed his mother did not read, and so the Tribunal put to the applicant that the  sole  purpose  of  this  letter  was  to  assist  him  in  his  protection  visa application. He stated that the letter was provided to his mother who then provided it to the applicant.

    48. The Tribunal noted that the letter stated that his mother had been attacked by an unknown gang. The Tribunal asked why the letter did not state that the applicant’s mother was attacked by the CID, as claimed by the applicant. The applicant stated that unknown gang was used because they did not want to reference the CID in the letter. The Tribunal questioned this, seeing that the letter had been drafted for the purposes of supporting the applicant’s claims, and the police would not have known that the letter had been written. The Tribunal expressed its concern with the applicant’s claim that it had been the CID who had come to the applicant’s home in September 2012, but that it may consider that the statement of the doctor was an accurate reflection of what had occurred on that date. The applicant stated that it was the CID who had come to the home and taken some photos of the applicant. The Tribunal questioned why the CID would want to come to the home and take photos of the applicant, as they would have had photographs of the applicant as taken during his time in the refugee camp. The applicant stated that they had come and taken photos.

    49. The Tribunal is concerned by the evidence in the letter. The Tribunal considers that the purpose of the letter is purely to support the applicant in his claims, written as it was three months after the incident, and in English, a language not used or understood by the applicant’s mother. The Tribunal does not accept that the applicant’s mother or the doctor would seek to hide the involvement of the CID in the incident if the CID had been involved, given that the letter had been drafted for the purposes of assisting the applicant in his claims for protection, and that the CID would not be aware of the contents of the letter prepared for this purpose. The Tribunal considers that if it had been the CID who had been at the home on this occasion, this would have been reflected in the letter. The Tribunal considers that the fact that an unknown gang was used as the descriptor indicates that it was not the CID, who would have no concern in identifying themselves during a raid on a property, but other people not associated with the authorities. The Tribunal does not accept that the attack on the applicant’s mother related to any personal circumstances of the applicant, including any concern of the authorities with the applicant. With respect to photos being taken, the Tribunal does not accept these were taken by the authorities, or that they would be used in any way to incriminate the applicant on return to Sri Lanka. The Tribunal considers that the authorities already have materials pertaining to the applicant’s identity, arising from his previous experience with the authorities while in a refugee camp, and more recently through his application for receipt of formal documents such as his passport and drivers licence. The Tribunal does not accept the CID would need to take photographs of the applicant for future purposes in such an incident. The Tribunal does not accept that the authorities were involved in the incident of 20 September 2012, that they harmed the applicant’s mother or have sought the applicant at any time.

16. The Tribunal member was clearly not intransigent about the applicant’s case, given that at the beginning of paragraph [47] they accept that a mistake about dates was not a significant matter but a minor discrepancy. The Tribunal member has squarely considered these issues.

17. The final matter that the applicant raises is a claim that he suffers some form of mental illness which impairs his capacity to present his case before the Tribunal. This general issue is the subject of submissions by his advisers that appear at p.302 of the court book. Submissions about the impact of past events on his ability to speak openly are made in that document. It does not allege that he has a diagnosable mental illness. The Tribunal has had regard to these submissions and discussed them at paragraph [41] of their decision, where they said:

    41. There have been consistent concerns raised regarding the credibility of the claims of the applicant; by the Department in their decision; submissions addressing the credibility concerns provided by the applicant’s agent; further concerns raised by the Tribunal of inconsistencies and apparent implausibilities in the applicant’s claims; and again, further submissions that the applicant is young, and although he had completed year 12 he was not sufficiently prepared to be questioned about his claims and found the process quite nerve wracking. The delegate noted a number of credibility related concerns with the applicant’s evidence in their decision, ultimately determining that the applicant had not been arrested as he had claimed. The applicant’s agents have made submissions about the applicant’s age, worldliness, fear of authorities and difficulty articulating his claims, and the Tribunal has considered this in the coming to its determination regarding the credibility of aspects of the applicant’s claims. However given the significant number of credibility issues that are identified below, the Tribunal does not accept that the applicant’s age, innocence, worldliness or fear of authorities account for the issues arising in the applicant’s claims.

1. To the extent these issues were raised before the Tribunal, it appears that the Tribunal have dealt with them.

2. In summary, the Tribunal have made extensive findings against the applicant on credibility. The simplistic grounds of review in this application did not identify any specific error by the Tribunal. At the hearing, after some questioning from the bench, the applicant was able to articulate four complaints that he made about the Tribunal member. Each of those has been considered and is discussed above.

3. I am not persuaded that the applicant has established a ground for judicial review of the decision.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 11 May 2016