BPT15 v Minister for Immigration

[2017] FCCA 200

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPT15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 200

Catchwords:
MIGRATION – Review of a decision of the Administrative Appeals Tribunal – application for a Protection (class XA) visa – whether Tribunal failed to consider relevant considerations – whether Tribunal applied the wrong legal test – whether Tribunal correctly exercised power under s.424 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Citizenship v MZYCE [2010] FCA 767

Applicant: BPT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1830 of 2015

Judgment of: Judge Hartnett

Hearing date: 4 November 2016

Delivered at: Melbourne

Delivered on: 8 February 2017

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the Respondents: Mr. Rogers

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1830 of 2015

BPT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By amended application filed 20 October 2016 the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) of 14 July 2015. The Applicant argues such decision is affected by jurisdictional error. The decision of the Tribunal affirmed a decision of a delegate of the First Respondent on 14 April 2014 to refuse to grant the Applicant a Protection (Class XA) visa (‘the visa’).

2. The Applicant did not press grounds two, three and five of the amended application and essentially those grounds were abandoned by the Applicant.

3. The grounds of the amended application on which the Applicant proceeds are grounds one, four, six and seven. Those grounds are as set out below:-

   “1. The Tribunal committed an error of law and a jurisdictional error by failing to consider relevant considerations including all of the Applicant's claims or integers of claims or material questions of fact raised by the material before the Tribunal or all information before the Tribunal.

   Particulars

   (a) The Tribunal considered that the Applicant does not have a profile of association with the LTTE as a result of having been abducted by them in 2003 – 2004, but in making this assessment it did not advert to the Applicant's claims that his absence was reported to the Sri Lankan Army at the time when his parents were seeking news of him. This affected the Tribunal’s assessment of the risk of harm to the Applicant if he returns to Sri Lanka in the course of being questioned by authorities.

   (b) The Tribunal was required to consider whether there was a well-founded fear of persecution, a real chance of serious harm or a real risk of persecution. Its findings about the risk to the Applicant from his support for the TNA were based on an assessment of whether he ''will be involved in elections" (emphasis added), and in what manner and with what results, not on an assessment  of whether he may be involved in elections such that there is a real chance that he may suffer persecution or significant harm. It therefore failed to consider a relevant question arising on the material.

   (c) The Tribunal noted with apparent approval a number of reports about the risk of harm to Tamils and concluded that "whilst Tamil ethnicity has been a risk factor in the past ... this is no longer the case". This finding leads to the inference that the Tribunal did not have regard to reports which referred to the continuation of some level of torture and other serious harm directed at Tamils including, but not limited to those with associations with the LTTE. (See e.g. reports by Amnesty International; Christian Science Monitor; Human Rights Watch; DFAT; UK Home Office and US State Department; Human Rights Watch; UNHCR; UNCAT and UNHCR; Human Rights Watch and others)

   (d) The Tribunal made no finding about the level of risk of serious harm amounting to persecution or of significant harm arising from the reported programme of Sinhalisation advanced in the Applicant's submissions.

   …

   4. The Tribunal committed jurisdictional error by making findings that were unreasonable and/or without sufficient evidence.

   Particulars

   (a) In rejecting the proposition that the Applicant had a profile as associated with the LTTE, the Tribunal relied on:

   “country information…that anyone suspected of LTTE associations was detained and sent to rehabilitation camp towards the end of the war, which the Applicant was not."

   This "country information" from DFAT could not reasonably be regarded as basis for rejecting the Applicant's claim to have an LTTE profile, however, given that the Tribunal:

   “also accepts continuing detentions and torture against particular Tamils, who may be suspected LTTE or criminals, even since the end of the war." (emphasis added.)

   (b) The Tribunal noted with apparent approval a number of reports about the risk of harm to Tamils and concluded that ''whilst Tamil ethnicity has been a risk factor in the past... this is no longer the case". This finding was unreasonable, given the reports before the Tribunal which referred to the continuation of some level of torture and other serious harm directed at Tamils including, but not limited to, those with associations with the LTTE.

   (See e.g. reports by: Amnesty International; Christian Science Monitor; Human Rights Watch; DFAT; UK Home Office and US State Department; Human Rights Watch; UNHCR; UNCAT and UNHCR; Human Rights Watch and others)

   (c) The Applicant claimed to have assisted a TNA candidate for a month during the 2010 election and to have been sought and threatened because of this by the Karuna Group. The Tribunal said it:

   " accepts on the benefit of the doubt that the Applicant and his father supported [a particular candidate (‘the MP’)]or the TNA in the 2010 elections. However it does not accept they were high profile supporters or campaigners or that [the candidate] is well known to either of them as there is no mention of such an association and no mention of an association with the father in the letter from of 2010."  

   The Tribunal did not reject the claim by the Applicant to have given some assistance to the MP, although it found the Applicant's support to have been at a "low level", but then contradictorily said it "does not accept that the Applicant has the profile or will be involved in elections in the future."

   (d) The Tribunal had potentially strong corroborative evidence of the Applicant's claims in the letter of the MP, but rejected this as of no weight without making any inquiry of the MP.

   …

   6. The Tribunal fell into jurisdictional error in that it failed correctly to interpret or apply the law.

   Particulars

   The Tribunal was required to consider whether there was a well-founded fear of persecution, a real chance of serious harm or a real risk of persecution, but its findings about the risk to the Applicant from his support for the TNA were based on an assessment of whether he "will be involved in elections", emphasis added), and in what manner and with what results, not on an assessment of whether he may be involved in elections such that there is a real chance that he may suffer persecution or significant harm.

   7. The Tribunal fell into jurisdictional error in that it failed to exercise its power to inquire or get information as required by law for the purposes of the review, whether by the exercise of its power under section 424 of the Act to get information or otherwise.

   Particulars

   The Tribunal had potentially strong corroborative evidence of the Applicant's claims in the letter of the MP, but rejected this as of no weight without making any inquiry of the MP.”

4. The Applicant seeks that the Court issue writs and make orders setting aside the decision of the Tribunal, and remitting the matter to the Tribunal, with a direction that it be constituted by a member other than the member who made the decision, for consideration according to law. The Applicant seeks costs.

5. The First Respondent submits that no jurisdictional error attends the Tribunal decision and that the application should be dismissed with costs.

The Applicant’s Claims and Tribunal Findings

1. The Applicant is a national of Sri Lanka. He is of Tamil ethnicity and Hindu religion.

2. The Applicant appeared before the Tribunal on 30 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The Applicant was represented in relation to the review by his registered migration agent, who attended the hearing by telephone.

3. The Tribunal set out the relevant issues for it in paragraph four of the Statement of Decision and Reasons (‘the Decision Record’) as follows:-

   “a) is the Applicant credible?

   b) does Australia have protection obligations under the Refugee  Convention?

   c) does Australia have protection obligations under the complementary protection criterion?”

4. The Applicant claimed to fear persecution for reasons of his Tamil race; actual and imputed political opinion, including being perceived as a sympathiser/supporter of the Liberation Tigers of Tamil Elam (‘LTTE’) and a person perceived to hold views in opposition to the Sri Lankan government; and/or his membership of a particular social group of failed asylum seekers involuntarily returned to Sri Lanka.

5. The Tribunal’s findings in respect of the Applicant’s various claims are set out in a comprehensive and accurate manner in the First Respondent’s written submissions which I adopt herein:-

Claim to have been abducted by the LTTE in 2003

a)the Applicant claimed that in late 2003 (or early 2004) he was abducted by the LTTE and detained. The LTTE attempted to recruit him. He escaped after three months. The Applicant claimed that the Sri Lankan Army knew of his abduction by the LTTE because of his parents’ efforts to locate him at the time;

b)the Tribunal accepted the Applicant’s evidence that he was abducted for three months in 2003. But the Tribunal proceeded to find that it ‘does not accept that Karuna or anyone would be interested in the Applicant in 2011 because he escaped the LTTE in 2003’. It noted that many people were caught up with the LTTE during the civil war but found it ‘does not accept that nearly ten years later anyone would be interested in him or remember him or his abduction or want to take revenge’. The Tribunal found ‘[i]t is not credible that anyone would be interested in him so many years later and given the context of the war, where many were abducted and escaped the LTTE’;

c)further, the Tribunal found that being held by the LTTE did not create a risk of a person being perceived as LTTE as ‘there were many such persons during the war’ and at the end of the war, anyone suspected by authorities of LTTE affiliations was detained and sent to rehabilitation camp, which the Applicant was not.  The Tribunal cited and relied upon country information to the effect that authorities are aware that everyone in formerly LTTE controlled areas had ‘some involvement’ with the LTTE, it found that authorities are only interested in those Tamils who are a present risk or interested in reviving the conflict. The Tribunal was not satisfied that the Applicant had any profile that would lead him to be perceived as such a person;

Claim to have been involved with the Tamil National Alliance (TNA)

d)the Applicant claimed that in the 2010 elections he had assisted a member of the TNA. The Applicant claimed that as a result of those activities, he was threatened by the Karuna group. He also claimed that many of the same people who abducted him in 2003 were then affiliated with the Karuna group, and he suspects it was the same people who made threats to him following his work campaigning for the TNA in 2010;

e)the Applicant himself acknowledged that his claimed involvement with the TNA ‘was limited’. But he claimed that the members of the Karuna group were primarily interested in him because they recognised him as a former supporter of the LTTE. The Applicant also claimed that his father had been more involved than the Applicant in supporting the TNA campaign in 2010;

f)the Tribunal found that the Applicant had only ‘superficial knowledge or understanding of the TNA’, finding that he understood it to be one party, whereas country information establishes that it is an alliance of parties. The Tribunal found that if he had a genuine interest in the TNA, and had campaigned for it as claimed, he would have known the TNA was an alliance of parties. Significantly, the Tribunal made findings that the ‘Applicant has exaggerated his claims about his involvement with the TNA and his father’s profile and fabricated his claims about threats from Karuna or TMVP, his profile as an LTTE cadre, being targeted by paramilitary groups or authorities’. In particular, the Tribunal described the Applicant’s claims to have been threatened as variously ‘vague’ lacking in ‘details and coherence’ and inconsistent;

g)with his visa application the Applicant produced a letter claiming to be from X, a TNA Member of Parliament, dated 15 July 2012 (‘the MP letter’). Amongst other things, the letter stated that the Applicant supported the party and had been involved in the 2010 elections. It made no mention of the Applicant's father. In relation to the MP letter, the Tribunal found it anomalous that the letter did not mention the Applicant’s father, who it was claimed had been more involved in the campaign and to be better known to the MP. Further, the Tribunal found that the letter was general and lacked specifics, and that document fraud is prevalent in Sri Lanka.  For these reasons, the Tribunal placed no weight on the MP letter;

h)notwithstanding its considerable concerns, the Tribunal gave the Applicant ‘the benefit of the doubt’ to accept that the Applicant and his father supported X and the TNA in the 2010 elections. But it found ‘it does not accept they were high profile supporters or campaigners or that X is well known to either of them’. The Tribunal found that the Applicant had not claimed to have campaigned in any other elections, and rejected his claim that he did not do so because of threats made to him, as it did not accept that he had ever been threatened. The Tribunal also rejected the Applicant’s claim that his father had campaigned in subsequent elections. The Applicant was unable to give any details about what his father had done and admitted he only ‘assumed’ he had campaigned again. It found that on his own evidence, the Applicant had not made any effort to discuss the father’s claimed political activities with him as it would expect him to if he was really involved and interested in politics;

i)having regard to its credibility findings, the Tribunal proceeded to consider the extent of the Applicant's future involvement with the TNA or politics generally. It did not accept that the Applicant and his father ‘will campaign or be high level supporters or campaigners in the future as it does not accept they have been in the past’. Having rejected the Applicant’s claims to have been threatened in the past for political reasons, including his support of the TNA, the Tribunal was not satisfied that there was a real chance he would face harm for his support of the TNA or political opinion generally;

Claim to fear harm because of Tamil race

j)the Applicant claimed to fear harm for reason of his Tamil race. He claimed that there was ‘continuing, systematic persecution of Tamils despite the proclaimed end of the war in May 2009’. The measures the Applicant pointed to on the part of the Sri Lankan government's continuing campaign to repress Tamils included increasing militarisation and ‘Sinhalisation’ of the country's northern province;

k)the Tribunal considered the Applicant's claims to fear harm for reason of being Tamil at some length. The Tribunal accepted that at least until the end of the civil war in 2009, Tamils had suffered disproportionately at the hands of authorities. It also accepted there is some continuing mistreatment of some Tamils suspected of being LTTE or criminals. But significantly the Tribunal found that ‘the security and humanitarian situation in Sri Lanka has greatly improved since the end of the war’. The Tribunal did not accept that merely being Tamil, or being a Tamil male from a formerly LTTE−controlled area, would lead to a real chance of harm. The Tribunal accepted that Tamils suspected of being pro-separatist may be at risk of harm, but found that nothing in the Applicant's profile would lead to any perception that he is interested in separatism or reviving the conflict; and

l)the Tribunal considered whether as a Tamil, the Applicant faces a real chance of serious harm in the form of denial of access to health and education, or the ability to subsist, because of discrimination against Tamils. It found that on the Applicant's own evidence he could find work, and that country information indicates that monitoring of Tamils at checkpoints has greatly reduced.

Consideration

1. The Court has determined that the application should be dismissed for the reasons which follow.

Ground One: Failure to consider claims and integers of claims and all relevant material

1. On a fair reading of the Decision Record it is clear that the Tribunal assessed the risk of harm to the Applicant on return to Sri Lanka on the basis that the Sri Lankan authorities would know of the Applicant’s 2003 abduction, and was not satisfied that would lead to a real chance of the authorities harming him. The Applicant, the Tribunal found, would not be seen as having LTTE affiliations or to be a supporter of the LTTE.

2. The Tribunal made adverse credibility findings against the Applicant when considering the Applicant’s claim to fear harm for reason of his political opinion in the reasonably foreseeable future. The Tribunal found the Applicant not to have campaigned in elections in the past as claimed, and not to have suffered threats as a result. On the evidence before it, that dismissal of the factual basis of the Applicant’s claim was open to the Tribunal.

3. On a fair reading of the Decision Record it is clear that the Tribunal had regard to relevant country information including that placed before it by the Applicant. The Tribunal referred in its Decision Record to much of such country information. It cannot be inferred that it failed to have regard to critical evidence placed before it by the Applicant. The Tribunal said as to the country information before it:-

   “(71) The Tribunal has considered the agent submissions and country information, including DFAT reports, UNHCR guidelines and UK upper tribunal decision country information, to which it referred in the course of the hearing. In particular, the Tribunal has considered the agent submissions regarding the treatment of the DFAT report and country information from media reports and others in those submissions. The Tribunal accepts the authorities are interested in persons who might be a threat to the regime and interested in reviving the conflict or LTTE and that such persons face harm from authorities. However the tribunal does not accept the Applicant has such a profile or will be perceived as such.

   (72) The Tribunal is satisfied that the DFAT reports are compiled with the greatest degree of scrutiny of information, independence and verification, with adequate research and a great degree of accuracy. Further, the DFAT report refers to and acknowledges discrimination in practice and the UNHCR risk profiles and other independent information and sources. The Tribunal is also mindful that the DFAT report is considerably more recent and more detailed than many of the reports on which the Applicant relies and gives the former more weight.”

1. The Tribunal considered and made findings as to each of the claims raised by the Applicant which related to his being a Tamil. On the basis of relevant country information the Tribunal was not satisfied that the Sinhalese dominated government was persecuting Tamils. The Tribunal concluded that the Applicant did not face a real chance of serious or significant harm. That finding was open to the Tribunal on the evidence before it.

Ground Four: Unreasonableness and Ground Seven: Failure to enquire

1. There is no basis for these grounds.

2. The Applicant claims that it was not open to the Tribunal to rely on country information indicating that those suspected of LTTE associations were detained towards the end of the war. This country information, along with the Tribunal's finding that the Applicant had not been detained, was one of the reasons for its finding that the Applicant's abduction in 2003 had not caused authorities to suspect him of being connected to the LTTE. The Tribunal also relied on information to the effect that many Tamils had been caught up in similar circumstances, and that authorities accepted that Tamils in formerly LTTE controlled areas will have had some involvement with the LTTE. As submitted by the First Respondent, the fact that the authorities detained many Tamils suspected of LTTE associations, and that the Applicant had not been detained, was logically probative of the conclusion that he was not perceived as having LTTE associations.

3. The Tribunal accepted that there was some ongoing mistreatment of Tamils suspected of LTTE association, and additionally of Tamils in other factual circumstances as referred to in the relevant country information which it considered. It then by reference to that country information considered the Applicant’s particular circumstances and concluded, as was open to it, that the Applicant had no attributes or claims which the Tribunal accepted factually, that might put the Applicant at risk.

4. As submitted by the First Respondent, it was not unreasonable for the Tribunal to find that the Applicant will not be involved in future elections give the Tribunal’s rejection of the Applicant’s claims that he had been so involved in the past. The Tribunal found the Applicant had no real interest in political activity.

5. In respect of each of the particulars pleaded by the Applicant under the ‘unreasonableness’ ground, it is not possible to say that a reasonable decision maker could not have reached the same conclusion that the Tribunal did.[1]

   [1] Minister for Immigration and Citizenship v MZYCE [2010] FCA 767.

6. The Tribunal placed no weight on a letter claiming to be from a TNA Member of Parliament. The Tribunal set out cogent reasons for so doing which included that the Applicant’s underlying claims were not credible. There was no illogicality or unreasonableness in such findings.

7. There was further no obligation upon the Tribunal to make enquiries as to the veracity of the MP letter. The Applicant was clearly on notice that his evidence might not be accepted, in particular given the delegate of the First Respondent’s earlier decision. There was no particular factual circumstances put forward by the Applicant to the Tribunal wherein it made it unreasonable for the Tribunal not to so enquire. That is, there was no obvious enquiry that would be of utility. (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429).

Ground Six: Applying the wrong legal test

1. The Tribunal applied the real chance test and this ground cannot succeed. As said earlier in these reasons, the Tribunal rejected the Applicant’s claim that he will be involved in future elections on the basis of its findings that the Applicant had no past history in that regard. The Decision Record otherwise indicated the Tribunal’s correct application of the relevant law.

2. The findings of fact made by the Tribunal were rational determinations founded in the evidence before it. Many were credibility findings as to underlying facts.

3. The Applicant has not established jurisdictional error in the decision of the Tribunal. Accordingly, the application will be dismissed and costs shall follow.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 9 February 2017