BRT15 v Minister for Immigration

[2016] FCCA 2577

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2577

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant believed in part but disbelieved in critical respects – applicant’s fears otherwise found not to be well-founded – applicant’s father killed during the civil war – whether the Tribunal overlooked an element of the applicant’s claims considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36

Applicant: BRT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2299 of 2015

Judgment of: Judge Driver

Hearing date: 6 October 2016

Delivered at: Sydney

Delivered on: 11 November 2016

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges of Stephen Hodges, Solicitor

Solicitors for the Respondents: Ms C Hillary of DLA Piper

ORDERS

1. The application as amended in Court on 6 October 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2299 of 2015

BRT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant is a Sri Lankan man from Jaffna in the northern province.  He is a Tamil and Hindu.  He applied for a protection visa claiming a fear of harm because of his Tamil ethnicity, an imputed adverse political opinion arising from a perception that he is a member of the Liberation Tigers of Tamil Eelam (LTTE) and his membership of the particular social group of “returned failed asylum seekers”.  A delegate of the Minister refused the protection visa and the applicant sought review before the Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  On 23 July 2015 the Tribunal affirmed the delegate’s decision.  The applicant now seeks judicial review of the Tribunal decision. 

2. The following statement of background facts is derived from the submissions of the parties. 

3. The applicant is a male ethnic Tamil Hindu citizen of Sri Lanka, born in Jaffna, northern province[1].  He arrived in Australia as an Unauthorised Maritime Arrival.  He applied for a protection (Class XA) visa on 11 December 2012. 

   [1] Court Book (CB) 270 at [10]

4. The applicant provided a statutory declaration with his protection visa application.  He attended an entry interview on 8 October 2012 as well as a Departmental interview on 24 September 2013.

5. The applicant’s primary claims include the following[2]:

   a)when he was about seven years old, his father was killed by the Sri Lankan army because he was Tamil and suspected of involvement with the LTTE.  The applicant was exempted from LTTE membership because he was the only male in the household.  The applicant was wounded in the thigh by shelling on 21 March 2009.  He has never been an LTTE member or involved in their activities, although he worked with other Tamils to build shelter from the shelling;

   b)his family home was occupied by the army, without compensation.  His family eventually built another home in the area;

   c)shortly after the applicant was wounded in April 2009, he was interrogated by army officers in Vavuniya camp and asked how the wound was caused.  They accused him of being a LTTE fighter, and struck him twice with a cricket bat.  He was questioned about LTTE involvement on two more occasions while he was in IDP camps;

   d)the applicant worked as a driver and sales representative.  He was often stopped and harassed when passing through army checkpoints.  On one occasion in April 2012, he refused to comply with the soldiers’ demands for more expensive items from his lorry, they accused him of LTTE involvement and reported him to the police.  He was questioned by the Criminal Investigation Department (CID) who warned him to comply with demands that his lorry be inspected.  The next day, the applicant found police waiting for him at his home, with one of the army officers.  They warned him to cooperate with the army and give them what they wanted;

   e)a similar incident occurred the next week, leading the army to call the police once more.  The police took his driving licence, recorded his vehicle’s registration and gave him a temporary licence.  When he went to a police station to collect his licence he was served with a court summons.  He attended court and was fined Rs 2,500 on charges for failing to wear a seat belt and non-cooperation with the police;

   f)in October 2012, after the applicant arrived in Australia, CID officers attended his home.  His mother told them she did not know his whereabouts and referred them to his employer.  The applicant heard from his employer that the employer was approached by CID.  The CID came to the applicant’s house once more in January 2013 and spoke to his brother-in-law.

   [2] CB 270-1 at [10]

6. The applicant claims to fear harm from the army, police and the CID, if he were to return to Sri Lanka, on the following bases[3]:

   a)his Tamil ethnicity;

   b)an imputed adverse political opinion from a perception that he is a member of the LTTE, his father was killed for pro LTTE involvement, because the applicant is a Tamil from Jaffna district, and because of his severe scarring.  The local authorities will discover this scarring if he is detained.  He has been seriously harmed in the past because the injury gave rise to a perception that he was an LTTE member.  He is also perceived to have disrespected and refused to cooperate with the authorities because he pleaded guilty to offences in 2012;

   c)the applicant’s membership of a particular social group consisting of “returned failed asylum seekers”.

   [3] CB 271 at [10]

7. In a protection visa interview on 24 September 2013, the applicant added that[4]:

   a)in addition to the incident in Vavuniya camp, he was questioned on two previous occasions while in IDP camps;

   b)in October 2012, the CID came to the house and spoke to his mother and brother-in-law, asking where he was.  They returned in January 2013 to ask his mother about him, and also questioned his employer.  They took his brother-in-law to the camp and questioned him.

   [4] CB 272 at [12]

8. A delegate of the Minister refused to grant the applicant a protection visa on 17 December 2013.  The applicant applied to the Tribunal for review of this decision on 24 December 2013.

9. The applicant appeared before the Tribunal on 22 April 2015.  In making its decision the Tribunal had before it various untranslated documents submitted to the Department.

10. The applicant also submitted documents to the Tribunal consisting of submissions from the applicant's agent dated 13 April 2015, a letter dated 23 December 2013 from S Shritharan, a letter dated 14 June 2011 from Vaththirayan Rural Development Society, a letter dated 5 February 2012 from District General Hospital - Kilinochchi, and a message form from the Sri Lankan police. 

11. The Tribunal affirmed the decision of the delegate on 23 July 2015.

The decision of the Tribunal

Imputed political opinion

1. The Tribunal considered the applicant's imputed political opinion as arising from eight bases: his Tamil ethnicity[5]; his residence in the northern province[6]; his father’s suspected support for the LTTE[7]; his previous detention by security forces as a suspected LTTE supporter[8]; his scarring[9]; his resistance to extortion[10]; being a failed asylum seeker[11]; and, due to an argument with the Army[12]. 

   [5] see [24]-[25]

   [6] see [26]-[27]

   [7] see [28]-[31]

   [8] see [32]-[35]

   [9] see [36]-[41]

   [10] see [42]-[44]

   [11] see [45]

   [12] see [46]

2. On the basis of country information, the Tribunal was not satisfied the authorities still regard Sri Lankan citizens as holding a political opinion in support of the LTTE on the basis that they are Tamil[13]. 

   [13] [25]

3. The Tribunal accepted that the applicant would have had some contact with various aspects of the LTTE civil administration in the north but found that this level of engagement was recognised by the authorities as no more than a reality of life in the north[14].  The Tribunal found that the applicant did not otherwise have any involvement with the LTTE due to his having lived in the north and thereby rejected this claim[15].

   [14] see [27]

   [15] see [27]

4. The Tribunal accepted that the applicant’s father was killed for suspected involvement with the LTTE.  On the basis of country information the Tribunal accepted that there was an elevated risk to persons to who were perceived as having substantive links with the LTTE arising from family members[16].  However the Tribunal found that the applicant's father was not in fact substantively connected with the LTTE and rejected this claim[17].  

   [16] see [30]

   [17] see [31]

5. The Tribunal accepted that the applicant had been detained and questioned[18].  However, in light of credibility concerns, the Tribunal did not accept that the applicant was on one occasion harmed and accused of being an LTTE member[19].  The Tribunal was also not satisfied that the incidents described by the applicant indicate that the authorities ever held a genuine suspicion that the applicant was a member or supporter of the LTTE[20]. 

   [18] see [34]

   [19] see [34]

   [20] see [35]

6. The Tribunal accepted that the applicant had a scar on his upper thigh as the result of an injury suffered as a civilian shortly before the end of the war[21].  The Tribunal accepted that this scar is known to authorities.  On the basis of country information, the Tribunal concluded there was some possibility that if the applicant were returned to Sri Lanka he could be questioned about his scar on arrival at the airport[22].  The Tribunal found, however, that if the circumstances of his wounding are correct then there was no reason why he would not be able to explain his scar, noting that he had done so in the past without any more than some mistreatment during questioning.  Accordingly the Tribunal rejected this claim. 

   [21] see [36]

   [22] see [41]

7. The Tribunal accepted that the applicant was subject to extortion demands, that when he refused the police arrested and charged him and that during these incidents he suffered a degree of harassment[23].  The Tribunal found the consequent fine imposed on him was minor and that he was not prevented from earning a living as a driver[24].  The Tribunal was not satisfied that the applicant was subjected to physical harm arising from these incidents or that he was singled out for extortion among other drivers.  The Tribunal found that it was not plausible that his refusal of the extortion demands would lead to him being suspected of LTTE involvement. 

   [23] see [43]

   [24] see [44]

8. The Tribunal accepted that the applicant would be known to authorities on his return as having unsuccessfully sought protection in Australia.  However the Tribunal was not satisfied that this would give rise to a suspicion that he supported the LTTE[25].

   [25] see [45]

9. The Tribunal found that any arguments the applicant had with the army would not have caused the army to take any form of action against him[26].

   [26] see [46]

10. The Tribunal accepted that the applicant's family and possibly his employer were asked routine questions about the applicant's whereabouts but was not satisfied of the credibility of his claims that CID officers questioned his family, that his brother-in-law suffered physical harm as part of that process or that in February 2015 his family received a direction for him to attend the Colombo headquarters of the CID[27]. 

    [27] see [49]

11. The Tribunal had regard to documents submitted by the applicant in relation to CID interest in him[28].  The Tribunal concluded that in light of country information about document fraud in Sri Lanka and concerns with the documents submitted[29], no weight could be placed on these documents including the letter from Mr Shritharan[30].

    [28] see [50]

    [29] outlined at [50]

    [30] see [51]

Tamil race or ethnicity

1. In light of country information about the stabilisation of the security situation in Sri Lanka following the war, the Tribunal did not accept that Tamils now face a real chance of serious harm because of their ethnicity[31].  The Tribunal acknowledged that country information suggested Tamils may face some societal discrimination but found that this did not amount to serious or significant harm[32]. 

   [31] see [56]

   [32] see [58]

Particular social group

1. The Tribunal was not satisfied that the applicant faced harm as a failed asylum seeker[33].  The Tribunal accepted that the applicant would be subject to standardised procedures on return to Sri Lanka involving routine questioning at the airport[34].  The Tribunal found that this would not amount to harm and neither would any routine monitoring that might occur once the applicant returns to Jaffna[35].  The Tribunal concluded that the applicant would not face serious harm for this reason[36].

   [33] see [61]

   [34] see [66]-[67]

   [35] see [67]

   [36] see [69]

2. The Tribunal found that the Immigrants and Emigrants Act in Sri Lanka is a law of general application which is appropriate and adapted to meet a legitimate national interest[37].  Accordingly while the Tribunal accepted that the applicant might face questioning, arrest and a brief period of detention on return in cramped and unsanitary conditions, it found that this did not amount to serious harm[38].

   [37] see [75]

   [38] see [76]

3. The Tribunal found that scarring alone does not give rise to an automatic assumption of LTTE links[39].  Accordingly the Tribunal was not satisfied that the applicant would be at risk of harm for this reason.

   [39] see [78]

4. The Tribunal did not accept that the applicant would be at any risk of harm because of his membership of a particular social group consisting of family members of suspected LTTE supporters[40].

   [40] see [81]

New claim

1. The applicant raised a claim at the hearing to fear harm from being denied the opportunity to worship as a Hindu on return to Sri Lanka[41].  The Tribunal was not satisfied there was any information before it to indicate that the applicant would be denied freedom of worship if he were to return to his village in Jaffna.

   [41] see [82]

Complementary protection

1. The Tribunal found that the imposition of a fine relating to the applicant's unlawful departure would not amount to significant harm and that any such fine would not reflect any intention by the state authorities to subject him to cruel or inhuman treatment or punishment or degrading treatment of punishment[42].  The Tribunal also found that if the applicant were arrested, detained and held in remand for a short period this would not amount to significant harm[43]. The Tribunal found that cramped, uncomfortable and unsanitary conditions in remand would not amount to significant harm. The Tribunal was not satisfied there would be intentional mistreatment which would give rise to significant harm in the sense prescribed by s.36(2A) of the Migration Act 1958 (Cth). The Tribunal was not satisfied that the applicant would suffer any harsher form of penalty for his unlawful departure[44].  The Tribunal concluded that the applicant did not satisfy the complementary protection criterion[45].

   [42] see [87]

   [43] see [88]

   [44] see [89]

   [45] see [91]

The judicial review application

1. These proceedings began with a show cause application filed on 20 August 2015.  At the trial of this matter on 6 October 2016 I gave leave for the applicant to rely upon an amended application, subject to the proviso that it was filed.  The amended application deletes all of the grounds in the original application and introduces the following new grounds:

   Ground 1

   The Tribunal committed jurisdictional error by failing to give adequate reasons for its finding that the applicant would not face risk if returned to Sri Lanka.

   PARTICULARS

   (i) The AAT accepted that the applicant was Sri Lankan Tamil.

   (ii) [CB 281, paragraph 24] the AAT found that the authorities would not suspect a person of being an LTTE supporter only because of Tamil ethnicity.

   (iii) [CB 282 paragraph 28] the AAT accepted that the applicant’s father had been shot by the navy because, the family believed, the father was suspected of being involved with the LTTE.

   (iv) [CB 282-3, paragraph 29] the AAT referred to evidence from the UNHCR guidelines that “previous (real or perceived) links” to a variety of persons including not only LTTE members but to family members.

   (v) [CB 283, paragraph 33] the AAT considered the applicant’s claim that he was detained and questioned in April 2012, refused to accept the applicant’s explanation for his wound/scarring and that they accused him of being an LTTE fighter.  The AAT and concluded [CB284, paragraph 34] “I am prepared to give him the benefit of the doubt by accepting that it did occur”.  Further “I am also prepared to accept that he was questioned on two other occasions.

   (vi) The evidence cited by the AAT [CB 282-3, paragraph 29] that “previous (real or perceived) links” to a variety of persons including not only LTTE members but also family members creates two possible categories of persons at risk.  The first is risk to family members of persons with previous real links to the LTTE.  The second family members with previous perceived links to the LTTE.

   (vii) It is relevant that the evidence refers to “previous”.  Therefore, the relationship or link does not need to be a current one.  There is nothing in the evidence to indicate that passage of time will erase the risk.

   (viii) The AAT disposed of the applicant’s claim that he was at risk because of his father’s perceived links to the LTTE by relying on the following [CB 283, paragraph 30]:

   ·     “The father did not have “substantive” links to the LTTE”;

   ·     “Whatever the perceptions may have been of the father’s LTTE links at the time of his shooting, they were thus not based on any actual LTTE activity on his part”, and

   ·     “There is nothing in the Applicant’s account to indicate that he himself ever came under suspicion as a result of political opinion imputed to his father”.

   (ix) Each of the reasons in the above subparagraph fails to explain or give reasons why the applicant is not at risk due to his father who was previously perceived to have links (not substantive or real according to the AAT) to the LTTE.  The error in the AAT’s analysis is depicted I the second dot point in the above subparagraph where the AAT seems to indicate that perceived links, if they are not real or substantive, are not relevant.  This is inconsistent with the profile identified in the UNHCR material and no reasons are advanced to explain the inconsistency.

   (x) Thus the AAT’s concluding finding [CB 296, paragraph 81] that there would be no risk to the applicant if was returned to Sri Lanka is in part based on findings in respect of which sufficient reasons are not given.

   Ground 2

   The AAT committed error because it failed to properly consider an integer of the applicant’s claim.

   PARTICULARS

   (i) The applicant relies on the particulars from Ground 1 above.

   (ii) The applicant plainly raised the claim that he was at risk given his father’s death at the hand of the navy;

   (iii) The applicant alleged that his father was killed due to perceived LTTE links;

   (iv) In the context of the particulars for Ground 1, the AAT constructively failed to address the claim of risk to the applicant that arose by reason of the applicant’s relationship to his father, a person with previous perceived links (admittedly not real or substantive) to the LTTE.

2. The applicant’s solicitor invited the Court to consider the grounds in reverse order. 

3. I have before me as evidence the court book filed on 1 October 2015. 

1. Both the applicant and the Minister made pre-hearing written submissions and oral submissions at the trial.

Consideration

Ground 2 – did the Tribunal fail to properly consider an integer of the applicant’s claims?

1. The applicant submits that he had plainly raised before the Tribunal a claim that he was at risk because of his father’s death at the hands of the Sri Lankan Navy.  The applicant claimed that his father was killed because of perceived links to the LTTE.  The applicant submits that the Tribunal constructively failed to address this claim that arose by reason of the applicant’s relationship to his father, admittedly in circumstances where his father did not have real or substantive links to the LTTE. 

2. The Tribunal dealt with this issue in its reasons at [28]-[31][46]:

   [46] CB 282-283

   It is claimed that the Applicant will be imputed with the pro-LTTE political opinion which was imputed to his father. At the hearing he said that he had no clear recollection of the incident in which his father was killed, in 1995, and knew none of the details. He only knew that other fisherman who were present at the time reported his father had been shot by the Navy because, they believed, he was suspected of involvement with the LTTE. He has given generally consistent evidence about this incident since his arrival in Australia and I accept that it did occur.

   I accept there is information before the Tribunal, including in the UNHCR Guidelines reporting by DFAT[47] and the United Kingdom Upper Chamber decision in GJ v Secretary of State for the Home Department, to indicate that in some circumstances persons who have family links to former LTTE members, or who are dependent on them or otherwise closely related to them, may themselves be at an elevated risk of harm by being suspected of having such links. The UNHCR Guidelines reports states that although a history of having lived in an area under LTTE control does not in itself give rise to a need for international protection,

   [47] DFAT, Country Report – Sri Lanka, 16 February 2015; DFAT Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014.

   .. previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

   1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

   2) Former LTTE combatants or “cadres”;

   3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

   4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

   5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

   6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles

   I accept that the UNHCR Guidelines speak of an elevated risk to persons who are perceived to have had substantive links with the LTTE but I believe it is relevant that the Applicant’s father did not, in fact have any such connection. The Applicant’s evidence about his father at the hearing was notably vague but I am satisfied that if he had been an LTTE member or had played any significant role in the affairs of the LTTE, and was killed because of it, this would be something very well-known within his family including to the Applicant himself.  Whatever the perceptions may have been of his father’s LTTE links at the time of his shooting, they were thus not based in any actual LTTE activity on his part.  I note further that his father’s death occurred when the Applicant was a young child and despite the direct family link between them there would clearly have been little or no opportunity for substantive exchanges between them of a kind which might lead the authorities to believe he had absorbed his father’s political opinion. Finally, I note that there is nothing in the Applicant’s account to indicate that he himself ever came under suspicion as a result of a political opinion imputed to his father or because of the circumstances of his death.  There is no suggestion that the authorities were trying to harm the Applicant but were unable to locate him while he was growing up, or that at any subsequent point he was genuinely believed to have had some form of LTTE involvement because of his family connection with his father.

   On the information before the Tribunal I am not satisfied there is a real chance that the Applicant would now come under suspicion of supporting the LTTE, or would be at risk of harm as a result, because of a family relationship with his father which is now twenty years in the past.

3. In my opinion, the Tribunal did adequately consider this integer of the applicant’s claims.

4. The Tribunal acknowledged at [30] of its decision that persons who are perceived to have had a substantive LTTE link have an elevated risk of harm.  The Tribunal went on to find that the applicant was not at risk of harm because of the following factors:

   a)the applicant’s father did not have actual LTTE links; and

   b)the applicant’s father died when he was very young, and there would have been little opportunity for them to have substantive exchanges of a kind which might lead the authorities to believe he had absorbed his father’s political opinion.

5. There was no evidence to suggest that the applicant was ever under suspicion himself as a result of his father’s death 20 years previously.

6. The Tribunal found that because the applicant’s father died when he was very young, there was no real chance that the applicant would come under suspicion or would be at risk of harm as a result[48]. 

   [48] at [31]

7. The applicant now seeks to link the Tribunal’s findings that the applicant was questioned by authorities and accused of being an LTTE member with his father’s perceived LTTE membership or association.  In my view, this is an example of the reconstruction of a claim after the event.  The Tribunal concluded at [35] that it was not satisfied that the Sri Lankan police or army ever held a genuine belief that the applicant was a member or sponsor of the LTTE.  This finding was based on other findings that if the applicant was in fact suspected of LTTE connections, he would not have been released after such a brief period[49]. 

   [49] see [35]

8. I see no error in the Tribunal’s approach.  This ground fails.

Ground 1 – did the Tribunal fail to give adequate reasons for its finding that the applicant would not face risk if returned to Sri Lanka?

1. In this ground, the applicant seeks to deconstruct the Tribunal’s reasoning from [24]-[30] and takes issue in particular with the Tribunal’s finding at [30] that “there is nothing in the applicant’s account to indicate that he himself came under suspicion as a result or political opinion imputed to his father”.  The applicant asserts that by this statement the Tribunal seems to indicate that perceived links, if they are not real or substantive, are not relevant.  The applicant asserts that because of this erroneous process of reasoning, the Tribunal’s conclusion at [81] that the applicant would face no risk if he was returned to Sri Lanka was in part based on findings in respect of which insufficient reasons were given.

2. There is no substance to this ground.

3. The Tribunal’s reasoning from CB 280 is clear and it is also plain from the Tribunal’s reasons at [30] that the Tribunal found that the applicant’s father had no connection with the LTTE.  It is also plain from the Tribunal’s reasoning at [35] that the Tribunal dealt with the issue of any perceived association of the applicant’s father with the LTTE as posing no risk to the applicant, given the long period of time since the applicant’s father’s death and the applicant’s very young age at that time. 

4. I reject this ground.

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 11 November 2016