BRGAK of 2008 v Minister for Immigration
[2009] FMCA 550
•19 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRGAK OF 2008 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 550 |
| MIGRATION – Review of Refugee Tribunal decision – Protection visa – whether the Tribunal took irrelevant considerations into account – whether the Tribunal failed to take relevant considerations into account – whether Tribunal fell into jurisdictional error concerning risk of further persecution – whether the Tribunal fell into jurisdictional error concerning reasonableness of internal relocation by the applicants. |
| Migration Act 1958 (Cth) |
| Associated Provincial Picture House Ltd v Wednesbury Corporation (Wednesbury Case) [1948] 1 KB 223 Craig v State of South Australia (1995) 184 CLR 163 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 |
| Applicants: | BRGAK OF 2008 & BRGAL OF 2008 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 234 of 2008 |
| Judgment of: | Burnett FM |
| Hearing date: | 11 February 2009 |
| Date of Last Submission: | 11 February 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 19 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Labone |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Ms Wheatley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
That in default of the applicant making application within seven (7) days of this order for any other order, the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 234 of 2008
| BRGAK OF 2008 & BRGAL OF 2008 |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 13 October 2006 each of the applicants entered Australia as the holders of a Sub class 676 Tourist visa issued on 24 May 2006. On 17 and 18 September 2006 they lodged applications for Protection (Class XA) visas. Their applications were refused by the delegate on
5 November 2007and on 27 November 2007 they filed applications for review by the Refugee Review Tribunal (the Tribunal).
Their applications for review were ultimately heard by the Tribunal on 29 January 2008 and 4 February 2008 before the Tribunal decided to affirm the delegate’s decision by its decision of 19 March 2008.
The applicants are husband and wife. In the context of the application the principal applicant was the male applicant. He claimed his business activities, political associations together with his ethnic and religious background gave rise to a Convention reason for the issue of protection visas. He contended those associations and characteristics put him at significant risk of serious harm by three groups within Sri Lanka.
In deciding the application the Tribunal accepted that irrespective of how the risk to the male applicant was characterised, if he does indeed face a real chance of persecution in Sri Lanka, it would be for a Convention reason. The Tribunal proceeded then to consider the groups contended to give rise to the prospect of serious harm capable of amounting to persecution. In this instance the threats were alleged to have been by persons associated with the JVP, the Sri Lankan authorities and the LTTE.
Concerning the JVP the Tribunal that found in the reasonably foreseeable future the male applicant did not face a real chance of persecution. It accepted the male applicant’s claims about he having been harmed in the past by people he believed were JVP members. It concluded his problems came about because in the course of his business activities he was dealing with Tamils and Muslims. However given that he had ceased those business activities the Tribunal did not accept that on the evidence before it he would in the reasonably foreseeable future face a real chance of persecution from the JVP.
Likewise the Tribunal made a similar finding concerning the risk of serious harm amounting to persecution in the reasonably foreseeable future from the Sri Lankan authorities. In particular it found that there was nothing implausible about the claims that as a Singhalese businessman the male applicant might be suspected of supporting the LTTE and that as a person suspected of involvement with the LTTE he could experience persecution at the hands of the Sri Lankan authorities. However, it proceeded to find that he had already been detained and released by the Sri Lankan authorities in the course of their inquiries without being seriously mistreated in the process. It accepted that he was released and found he had not been required further. It concluded that the applicant having been cleared of suspicion of providing material support to the LTTE when he had an operational business (and by inference was more likely to be in a position to provide such support) there would appear far less basis for suspecting him of such involvement now his business had shut down. It followed from the Tribunal’s reasoning that it did not accept the adverse interest of the Sri Lankan authorities in the applicant persisted.
Finally concerning the LTTE, the Tribunal found that in respect of it, there was no more than a remote chance the male applicant, could in the reasonably foreseeable future, suffer serious harm capable of amounting to persecution at their hands.
Overall the Tribunal concluded the male applicant had been persecuted in the past for a Convention reason but it did not accept that there was a real chance that the male applicant would encounter serious harm capable of amounting of persecution in the reasonably foreseeable future whether for any of the Convention reasons articulated by either applicant or otherwise.
As the Tribunal had accepted that the male applicant had been harmed by the JVP in the past it did for completeness consider whether safe relocation elsewhere in Sri Lanka was reasonably open to the applicants. After consideration of both the facts and the legal approach to that issue it decided that the applicants were not at risk from the JVP wherever they go within Sri Lanka. It found that even if the JVP was still interested in pursuing him, if the male applicant did relocate within Sri Lanka and did behave with ordinary prudence in doing so there would be no real chance that his new location would come to the JVP’s attention in the reasonably foreseeable future and thus safe relocation within Sri Lanka was reasonably open to the applicants, if required.
The applicants subsequently applied to this Court for a review of the Tribunal’s decision. They seek, inter alia, a declaration that the decision is void and of no force and effect, certiorari, prohibition, mandamus, or an injunction together with costs. The applicant advanced four grounds in their application although in their written submissions and oral argument they abandoned three of those grounds and pursued only the second of the four grounds originally articulated.
The ground advanced at the hearing was that the Tribunal acted without or in excess of jurisdiction and/or identified a wrong issue, asked itself the wrong questions, relied on irrelevant material and/or ignored relevant material.
In the applicants’ written submissions supplemented by the oral argument it was contended that the decision of the Tribunal constituted an improper exercise of power in that the Tribunal:
a)Took irrelevant considerations into account in the exercise of its power; and
b)Failed to take relevant considerations into account.
These matters were not further particularised but globally alleged against the Tribunal’s decision concerning its findings in relation to:
a)Further persecution; and
b)The reasonableness of relocation by the applicants within Sri Lanka.
Further persecution
As earlier noted the Tribunal found concerning the JVP the male applicant’s serious problems apparently only came about because in the course of his business activities he was dealing with Tamils and Muslims. Given he had ceased those business activities the Tribunal did not accept that in the reasonably foreseeable future the applicant faced a real chance of persecution from the JVP.
The male applicant contended this finding relies on his permanently discontinuing ‘his business and political activities’. The applicant complained that in making this finding the Tribunal based its decision on a finding not supported by evidence. That is there was no evidence by the applicant that he did not intend to re-establish his business. Ms Wheatly for the respondent contended that the matter expressed by the Tribunal was not a finding based in the evidence but a finding in the nature of a conclusion drawn from the evidence. On that basis she contends it was a finding open to be made on the facts in the nature of a conclusion to be drawn from the evidence. In my view it is plain from the passages preceding the finding complained of that the Tribunal’s finding was one of fact drawn from the facts before it. It was not a ‘fact’ asserted in the nature of a restatement of evidence as contended for by the applicant.
Furthermore it was contended that in making the finding that the male applicant had ceased those activities the Tribunal failed to consider the reasonableness of the male applicant being required to permanently discontinue his business and political activities and particularly in that context:
a)Whether it was reasonable for the male applicant to rely permanently on financial assistance from relatives for sustenance; and
b)The means available to the applicant to support himself if financial assistance from relatives was withdrawn.
The other matter submitted on this point was that the Tribunal failed to consider whether the circumstances of the male applicant constitute serious harm, specifically, that he must permanently discontinue his business activities for fear of persecution.
In response to that contention the respondent submitted that the Tribunal did not fail to consider this matter because it was not an issue before the Tribunal. I agree with that submission.
The evidence of the male applicant was that his business had deteriorated after the UNP government had lost power and progressively his business had come to a ‘standstill’. He informed the Tribunal he was no longer “doing any business”. This had transpired particularly after 2005 when he ceased operating from shop premises.[1] Further the Tribunal found that the male applicant’s business had been doing badly for a number of years because of an economic downturn. It did not accept the JVP’s actions precipitated the closure of the business. This was a finding open to the Tribunal on the evidence.
[1] Affidavit Steven Peter Maycock filed 29 January 2009 – Annexure SPM-1 T 56, ln 251-255.
Additionally the Tribunal concluded on the evidence that the male applicant had no desire to re-establish his business if he returned to Sri Lanka. Given he had closed his business it determined he would not be of interest to the Sri Lankan authorities. It follows, as was submitted by the respondent, that given the JVP did not require the male applicant to discontinue his business and that the evidence before the Tribunal was that the applicant’s business had already ceased and that he did not close his business due to any alleged persecution there was no issue to be considered in relation to whether the closure of the business constituted serious harm or whether it was reasonable to rely on relatives for sustenance. These were all matters open to be concluded upon the facts before the Tribunal. It cannot be criticised for making these findings.
I accept that no jurisdictional error was demonstrated to arise on this ground.
Relocation
The applicant contended that in finding “in all the circumstances of the present case, safe relocation within Sri Lanka is reasonably open to the applicants, if required” the Tribunal failed to consider the circumstances in which the applicant was required to permanently discontinue his business activities and did not take into account evidence concerning the respective ages of each of the male and female applicant together with their employment experience.
At the outset the respondents addressed this contention by noting that the comments made by the Tribunal concerning relocation were made “…just in case the Tribunal is wrong about the ongoing risk to the applicant from the JVP (who have, the Tribunal finds, harassed the applicants in the past), and there is in fact a real chance that the applicant will in the reasonably foreseeable future encounter in his local area of Sri Lanka serious harm from the JVP capable of amounting to persecution for a convention reason…”.[2]
[2] Decision page 34, fourth paragraph
Accordingly the respondents submitted the consideration of “relocation” merely constituted comments made by the Tribunal and when properly read do not actually form part of the reasons for deciding the application. In my view that is the case. The Tribunal’s basis for affirming the decision was that:
“The Tribunal does not accept that there is a real chance that the applicant will encounter serious harm capable of amounting to persecution in the reasonably foreseeable future in Sri Lanka, whether for any Convention reasons articulated by or on behalf of the applicant, or otherwise, and either individually or cumulatively.”[3]
[3] Decision page 34.5.
The conclusion expressed by the Tribunal at page 34 of its decision was one open to it on the facts before it. No jurisdictional error in the Craig v South Australia[4] sense has been demonstrated giving rise to a right of review. It follows this ground fails.
[4] (1985) 184 CLR 163
However for completeness I also examine the applicant’s further contentions on the relocation issue. Five matters were raised by the applicants. They complained that in deciding the question of internal relocation,
a)The Tribunal failed to consider whether the circumstances in which the male applicant was required to permanently discontinue his business activities for fear of persecution constituted serious harm for the purpose of section 91R of the Migration Act 1958 (the Migration Act);
b)The Tribunal failed to take account of evidence of the applicants’ age and employment ;
c)The Tribunal failed to consider that the applicant would experience further serious problems if he re-opened his business elsewhere within Sri Lanka and the practicality of doing so;
d)The Tribunal erred when considering the ‘ordinary prudence’ test in that it failed to take into account evidence concerning the applicants’ prior business activities including the male applicant’s travel and personal profile within Sri Lanka; and
e)The Tribunal took into account an irrelevant consideration in considering the applicants’ risk of danger on relocation be assessed by reference to ‘ordinary prudence’.
Serious harm
The applicant contended that pursuant to the Tribunal’s findings the applicant’s safe relocation within Sri Lanka relied upon the male applicant permanently discontinuing his business and political activities. In this context the Tribunal is said to have failed to consider whether the circumstances in which the male applicant was required to permanently discontinue his business activities for fear of persecution constituted serious harm for the purposes of section 91R of the Migration Act.
For reasons given earlier in the context of the applicant’s arguments concerning the future persecution this ground has no basis. As earlier observed the findings supported by evidence were that the JVP did not “require” the applicant to discontinue his business activities and that the applicant’s business had already ceased. Further that the applicant’s business did not close due to any alleged persecution. His business appears to have deteriorated because of adverse economic conditions generated by government. The business was not specifically targeted in that regard. The circumstances in which the applicant ceased to continue his business activities had no foundation in fact supporting a requirement to permanently discontinue his business activities for fear of persecution, they being circumstances constituting serious harm for the purpose of section 91R of the Migration Act.
Age and employment
The second matter raised by the applicants was that in reaching its decision on internal relocation the Tribunal did not take into account the evidence concerning the applicants’ age and employment experience. It was contended that they were relevant to the Tribunal’s consideration to whether the financial barriers exist that prevent the applicants from reaching internal safety.
It was submitted that on the basis of evidence available to the Tribunal it ought to have considered the applicants’ age and lengthy experience of business as relevant concerning whether, as a practical matter, relocation away from Colombo was practical and financially available to the applicants. The basis for this submission is found in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[5] where the Court stated:
“In the present case the delegate correctly asked whether the appellant’s fear was well founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.
This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
Moreover, the range of the realities that may need to be considered on the issue of reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm AR7. Professor Hathaway, op cit at p.134, expresses the position thus:
“The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognised.” [Original emphasis]”
[5] (1994) 52 FCR 437 at 442
It is apparent from the reasons that the Tribunal was cognizant of both applicants’ employment experiences.[6] Although it did not expressly comment upon the male applicant’s age it was hardly a matter that required comment given his appearance before it and the Tribunal’s awareness of he having been in business since 1981. However the need to consider matters beyond that were rendered otiose by the Tribunal’s acceptance of his evidence that his business had been sold[7] and that he expressed no wish to re-establish it.[8] The Tribunal accepted that evidence.
[6] Decision page 12 – 22.
[7] In stating this I expect the Tribunal had used this as a term synonymous with the Tribunal’s explanation for ceasing to trade.
[8] Decision page 37.3.
Given the tribunal’s finding that the male applicant did not intend to re-establish his business, that matter of itself was no longer a relevant consideration. The test for relevance is whether the failure to take the matter into account could not have materially affected the decision. Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40. It is plain that facts of age or employment experiences of the applicants would not have materially affected the decision concerning internal relocation in circumstances where the male applicant did not intend to re-establish his business
In this case evidence concerning the applicants’ age and business experience were merely peripheral matters of general relevance rather than specific relevance and the omission of the Tribunal to expressly deal with them did not disclose jurisdictional error on its part.
Re-opening of business and its practicality
It was further contended by the male applicant that the Tribunal having accepted that his serious problems came about because in the course of his business activities he was dealing with Tamils and Muslims it did not consider:
a)Whether the applicant would experience further serious problems if he re-opened a business elsewhere in the country; and
b)Whether as a practical matter relocation away from Colombo was reasonably accessible to the applicants.
This submission was met with the same response as the earlier submission concerning the relevance of the applicants’ age and prior business experience. That is, by reason of the male applicant’s evidence and the Tribunal’s acceptance of it in its findings, there was no issue that the male applicant would choose not to re-open a business. Accordingly he would not be confronted with the difficulties of doing so in another part of the country.
From that premise it followed the only remaining relevant issue was whether, as a practical matter, relocation away from Colombo was financially reasonably accessible to the applicants. The Tribunal addressed this more general issue when noting:
“… the [male] applicant has given evidence that he has been able to survive in Australia through the use of his savings and also in reliance upon the financial support of family members, and the Tribunal considers that it is no[t] unreasonable to expect him to attempt to do so, regardless of whether they stays [sic] with the second named applicant’s relatives or not.”
The matter of financial support was expressly considered by the Tribunal. The Tribunal’s finding was open to it on the evidence and was not unreasonable in the Wednesbury Case[9] sense.
[9] Associated Provincial Picture House Ltd v Wednesbury Corporation (Wednesbury Case) [1948] 1 KB 223
I do not consider the Tribunal failed to take account of any relevant consideration in respect of this matter. It follows that no jurisdictional error has been demonstrated on this ground.
Prior business activities and personal profile
Next the applicants complain that the Tribunal also found that “if the applicant relocates within Sri Lanka and behaves with ordinary prudence in doing so, there is no real chance that his location would come to the JVP’s attention in the reasonably foreseeable future”. The applicants contend that in reaching this finding the Tribunal did not take into account evidence that:
a)The applicant’s business activities involve distributing goods; and
b)The first and second applicants had travelled within Sri Lanka and that the male applicant was known within Sri Lanka as a result of his political and business activities.
Although the evidence did establish the applicant’s business involved inter alia, the distribution of goods the evidence did not suggest the distribution of goods occurred beyond a local basis. Indeed the Tribunal found that the applicant’s commercial activities were localised[10], as it was open for it to do.
[10] Decision page 35 – 36.
The complaint by the male applicant concerning engagement in distribution of goods in the context of relocation could only have substance if the male applicant was engaged in national distribution such that he arguably could have a national business profile thereby depriving him of the anonymity that would enable him to safely relocate. The facts do not support that contention. It follows that in this instance the applicants’ complaint that the Tribunal did not consider his business activities did include distribution of goods was not so relevant as to warrant express consideration: Minister for Aboriginal Affairs v Peko Wallsend Ltd (supra).
The applicant’s complaint that the Tribunal failed to consider the fact that he and his wife travelled within Sri Lanka and that he was known within Sri Lanka as a result of his political and business activities has no foundation. The Tribunal in fact found to the contrary. At page 35 – 36 in its decision the Tribunal stated:
“The applicants say that they are at risk of persecution from the JVP wherever they go in Sri Lanka, but the Tribunal does not accept this. It finds, on the contrary, that both the applicant’s political profile and the commercial activities in which he engaged were localised, and that there is neither any reason the JVP would pursue them elsewhere in Sri Lanka nor have the means to do so were they inclined”.[11]
[11] Decision page 35 – 36.
The omissions complained of here do not give rise to jurisdictional error on the part of the Tribunal.
Ordinary prudence
The final matter raised by the applicant was that the Tribunal misdirected itself and considered an irrelevant consideration by justifying its conclusion, in part, by relying upon the applicants to behave with “ordinary prudence”. The applicant contends the apposite test is one of “reasonableness”. As the Court observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (supra) at 442 the question to be addressed is not only whether the applicants could relocate but whether they could be reasonably expected to do so.
In the context of relocation however, as Professor Hathaway observed[12], “The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful…[Original emphasis]”
[12] As cited by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (supra) at 442
The issue ought be viewed objectively and assessed from the perspective of the applicant acting rationally and in accord with his stated intention. Plainly if the applicant in the ordinary course would conduct himself in a way likely to bring himself to the attention of his adversaries and his former associations were such that he was at risk, a question of genuine access to domestic protection would arise. If such an outcome could only arise because of deliberate and/or reckless behaviour on the part of the male applicant it could not be said that the access to domestic protection was genuinely required.
The respondent contended that the reference by the Tribunal to the applicants relocating “in a discrete [sic] fashion” and with “ordinary prudence” were merely references to the Tribunal’s findings that the applicants could relocate in a reasonably anonymous way so as not to bring themselves to the attention of any former persecutors, that is, in a way so to not notify those persecutors. Importantly, the respondent submitted, the Tribunal did not find or require that the applicants would need to modify their beliefs, opinions or memberships to a particular social group to reasonably avoid bringing themselves to the adverse attention of their former persecutors.
In my view that matter is the essence of the finding that has to be made in accordance with the principles laid out by Professor Hathaway and adopted by the Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (supra). The Tribunal’s observations concerning discreet relocation and prudence simply explain the underlying concept that the applicants’ genuine access to domestic protection ought to be assessed from the perspective that an applicant will not modify his beliefs, opinions or membership to a particular social group. Those matters will manifest in his behaviour. Just as it would be unreasonable to expect an applicant to modify his behaviours in order to shield himself from the adverse notice of those who might persecute him, so too it would be unreasonable in my view for an applicant who might otherwise not come to the adverse attention of a prospective persecutor to modify his behaviour to act in such a way as to invite such persecution.
The Tribunal did not find either applicant to be a reckless or flamboyant person. Accordingly the Tribunal determined that provided their behaviour wasn’t modified it expected that they would act with discretion and with reasonable prudence. In so doing they would act reasonably consistent with their obligations and would not be in need of asylum abroad; SZATV v Minister for Immigration and Citizenship[13].
[13] (2007) 233 CLR 18 at [99].
In my view no jurisdictional error has been demonstrated on this issue.
Conclusion
The applicants seek review of the decision of the Refugee Review Tribunal made 19 March 2008. Two grounds were advanced.
First the applicants’ contended that the Tribunal acted without or in excess of jurisdiction and/or identified a wrong issue, asked itself the wrong question, relied on irrelevant material and/or ignored relevant material concerning further persecution of them. I consider the decision was open to the Tribunal on the facts and that no jurisdictional error has been demonstrated. It was a privative clause decision and is not open to review.
Secondly the applicants sought review of the Tribunal’s findings in respect of its determinations on the relocation issue. Five matters were raised by the applicants. They complained that in deciding the question of internal relocation,
a)The Tribunal failed to consider whether the circumstances in which the male applicant was required to permanently discontinue his business activities for fear of persecution constituted serious harm for the purpose of section 91R Migration Act;
b)The Tribunal failed to take account of evidence of the applicants’ age and employment ;
c)The Tribunal failed to consider that the male applicant would experience further serious problems if he re-opened his business elsewhere within Sri Lanka and the practicality of doing so;
d)The Tribunal erred when considering the ‘ordinary prudence’ test in that it failed to take into account evidence concerning the applicants’ prior business activities including the male applicant’s travel and personal profile within Sri Lanka; and
e)The Tribunal took into account an irrelevant consideration in considering the applicants’ risk of danger on relocation be assessed by reference to ‘ordinary prudence’.
In respect of the matters advanced the Tribunal’s findings were open to it and did not demonstrate any jurisdictional error. The decision on that issue was a privative clause decision and is not open to review.
Orders
Application dismissed.
Unless the applicants make application for another costs order within 7 days of judgment the applicants pay the respondents costs of the application fixed in the sum of $5,000.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 19 June 2009
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