BRY15 v Minister for Immigration
[2016] FCCA 3188
•9 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRY15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3188 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant the applicant a protection visa – whether Tribunal applied the wrong test when assessing applicant’s claims against complementary protection – whether the Tribunal took into account direction issued pursuant to s.499 of the Migration Act 1958 (Cth) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 91R(1)(b), 499(1), 499(2A) |
| Cases cited: AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 AUE15 v Minister for Immigration and Border Protection [2016] FCA 331 |
| Applicant: | BRY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2307 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2016 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2307 of 2015
| BRY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 20 August 2015 the applicant, a citizen of Sri Lanka, a Tamil and Hindu, filed an application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The applicant arrived in Australia by boat on 13 June 2012 and applied for a Protection visa on 30 October 2012. In a statutory declaration that accompanied the applicant’s application for a protection visa,[1] the applicant claimed he married a woman from Hungary in 2009 for the purpose of obtaining a visa to Hungary, and that the marriage was arranged between the applicant’s father and uncle because the applicant needed to flee Sri Lanka for his safety. The applicant and his wife, however, did not form a loving relationship and she left one week after travelling to Sri Lanka for the wedding.
[1] CB71-75
The applicant claimed that in March 2012, his brother was driving a rickshaw and transported a man, Mr M, who was a friend of a Singhalese minister to his home. The applicant’s brother was beaten up at Mr M’s house, and was taken to the police station by people who worked for Mr M. The applicant’s brother was arrested after 3 days for an unknown reason, and the applicant’s brother’s rickshaw was damaged extensively. The applicant’s father assisted with his brother’s release from prison, after which the applicant’s brother required hospital treatment because he was severely beaten and his face was “extremely swollen”. The applicant’s brother went into hiding, “frequently travelling out of the house on his rickshaw”. The applicant’s brother’s wife informed the applicant’s father that the police went to their home looking for the applicant’s brother on two occasions, and in May 2012 the police went to the applicant’s home asking about his brother’s whereabouts. The police informed the applicant they did not believe him and that, if the applicant did not have details of his brother’s whereabouts by the following day, the police would take the applicant in his brother’s absence.
Two days later, the police returned to the applicant’s home, but the applicant was not home. He intentionally stayed away fearing the police would detain him because he was unable to get details of his brother’s whereabouts. The applicant feared he would be targeted in his brother’s absence and physically harmed. The applicant’s parents informed him that the police came looking for him a second time, but the applicant was in hiding at his aunt’s house. Three days later, the applicant’s cousin, Mr K, went to the applicant’s aunt’s house and informed the applicant he was fleeing Sri Lanka because Mr K’s brother was having problems with the Criminal Investigation Department (CID). The CID were pursuing Mr K’s brother, because they believed he was associated with the Liberation Tigers of Tamil Eelam (LTTE), but could not locate him and instead targeted Mr K. Mr K wanted to “save” the applicant and take him to Australia because the applicant had previously helped Mr K by signing and undertaking to release Mr K from a refugee camp, where Mr K was suspected of being a member of, or associated with the LTTE. The applicant agreed to flee Sri Lanka because he feared for his safety.
The applicant claimed a further reason for his fear of remaining in Sri Lanka. The applicant claimed his uncle owned a jewellery shop which the applicant looked after while his uncle was in India. While doing so, two people on motorbikes came to the shop and asked after the applicant’s uncle. The applicant informed them he did not know where his uncle was, they left the shop but later went to the uncle’s home where the applicant was staying. They asked for the applicant’s uncle again, and the applicant told them he did not know his uncle’s whereabouts. After the applicant informed his uncle people were asking after him, his uncle returned to Sri Lanka, but moved to a different residence, and asked the applicant to stay in the shop. The applicant’s uncle told the applicant he did not know who the people were who were looking for him, but he thought they may have been from the CID pursuing him because he had money and was a Tamil. The applicant’s uncle feared for his safety and fled to England where his wife was living. The applicant took care of his shops. The applicant lodged a complaint with the Human Rights Commission on the advice of his uncle.
While the applicant was at one of the shops, his uncle’s house was vandalised. While at the police station reporting the matter, the applicant noticed the bikes of the people who went to his uncle’s shop and home. The applicant feared they were after him and went to his family home in Chilow. While there, the applicant’s family in Udappu called him informing him “that a white van had come looking for [the applicant]”. The applicant went into hiding for two weeks. The applicant’s uncle’s wife who previously held a prominent position as a nurse in Sri Lanka returned from England and spoke with the authorities to “resolve the problem” for the applicant.
The applicant claims it is for these reasons and his being a male of Tamil ethnicity that he fled Sri Lanka and fears for his safety. The applicant claims that if he returns to Sri Lanka he will be pursued by authorities, his life will be threatened, he will be subjected to ongoing intimidation by the police and the CID unless his brother is released to them, and believes the authorities will harm him for reasons of imputed political opinion as a result of his brother and cousin’s “troubles”. The applicant also claims he is unable to seek protection from the authorities in Sri Lanka because it is those authorities the applicant fears persecution from.
Tribunal’s decision
The Tribunal found the applicant was not a credible witness, and it did not accept as true the applicant’s claims of fearing harm from the authorities or anyone else in Sri Lanka for any reason. The Tribunal further found the applicant had fabricated those claims, including the claims about his brother’s being involved in an incident, and Mr K’s being in detention.[2] The Tribunal relied on the following matters:
a) The Tribunal did not accept the authorities in Sri Lanka target other people including family members if they cannot locate their suspected or wanted person.[3]
b) The applicant conceded that the matters relating to his uncle that occurred in 2008 and 2009 were resolved in 2009, and there were no ongoing repercussions. The Tribunal found the applicant mentioned these past incidents to give him some reason for fearing harm from authorities.[4]
c) The applicant conceded he submitted a falsified document to support his claim that he helped Mr K to be released from the centre. The Tribunal did not accept as reasonable to believe the applicant was not aware of the falsified content of the document, and found the applicant knowingly submitted a falsified document.[5]
d) The Tribunal did not accept the applicant, or his brother or cousin, have any profile that would cause the authorities to think any of them have any association with the LTTE.[6]
[2] CB342, [69]
[3] CB341, [68], first bullet point.
[4] CB341, [68], second bullet point.
[5] CB341, [68], third bullet point.
[6] CB341, [68], fourth bullet point.
The Tribunal referred to claims made by the applicant before it at the hearing which he had not previously mentioned. The Tribunal did not accept these claims, even if true, were of any significance or would cause the applicant any concern if he returns to Sri Lanka in the reasonably foreseeable future. The Tribunal so found because:[7]
a) it did not accept the robbery at or near Kali Temple is of any ongoing concern because it was described as a one off incident where “the police were called and came”;
b) while claiming he feared Sinhalese in general, the applicant conceded nothing had happened to him (apart from his involvement in the incident referred to in (a) above); and
c) it did not accept the applicant’s parent’s possible visa to the UK would have any significance for the applicant other than he will be in Sri Lanka without any immediate family.
[7] CB341-342, [68], fifth bullet point
The Tribunal considered the applicant’s claim that he is at risk because he is a Tamil male. Referring to country information and its being conflicting at times, the Tribunal accepted that up until the war ended in May 2009, and for a period beyond that, Tamils in Sri Lanka were at risk of serious harm from the authorities, and that Tamils living in the Northern and Eastern provinces were more likely to be targeted. The Tribunal also referred to country information which indicated the security situation in Sri Lanka has stabilised and the risk of harm to Sri Lankan citizens on the basis of their being Tamil has substantially reduced. The Tribunal was not reasonably satisfied that Sri Lankans who are Tamil now face serious harm because of their ethnicity or factors such as being from the North or East, or that being young and male put them at greater risk of harm.
The Tribunal accepted that on his return to Sri Lanka the applicant would be doing so as a failed asylum seeker from a western country; and it accepted the applicant would be questioned by the authorities, and would be arrested and held on remand for a few days while awaiting a court appearance. The Tribunal accepted the conditions in Negombo prison are cramped and probably unsanitary and it accepted a fine of between 50,000 and 100,000 rupees would be imposed. The Tribunal concluded that being questioned, being detained for a few days, and being fined between 50,000 to 100,000 rupees was not harm of the type and seriousness that would amount to persecution within the meaning of s.91R(1)(b) of the Act.[8] The Tribunal also found that his being arrested and held on remand on his return to Sri Lanka, as well as his being fined, will not constitute significant harm within the meaning of s.36(2A) of the Act.[9]
[8] CB343, [79]
[9] CB344, [87]
The Tribunal was not satisfied the applicant has a well-founded fear of persecution for reasons of a Convention ground and as such, was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal was also not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Grounds of review
The application filed with this Court contains three grounds of review. The applicant, who is not legally represented, did not address the grounds stated in the application. Instead, he submitted he could not return to his country because he is a Tamil; his parents will be moving to London; and if he returns to Sri Lanka he will face lots of problems. These submissions, however, afford no grounds for this Court to interfere with the Tribunal’s decision. This Court’s jurisdiction is limited to determining whether the Tribunal made a jurisdictional error.
Ground 1
The first ground is:
The tribunal made a legal error in asking itself the wrong question.
Particulars
(a)At [86]-[87] the tribunal asked itself whether the applicant was of “adverse interest to anyone” or “a level of adverse profile” when assessing complementary protection;
(b)An “adverse interest” is another way of stating the persecution test of motivation; and
(c)This is the wrong test when assessing complementary protection and the Tribunal has failed to assess complementary protection in accordance with the definition provided by s.5(1) of the Act.
This ground relates to what the Tribunal said in paragraphs 86 and 87 of its reasons for decision. At paragraph 86 the Tribunal said that, “[a]s detailed above”, the Tribunal found the applicant was not a credible witness and, therefore, did not accept the applicant’s claims that he was of adverse interest to anyone. In paragraph 87 of its reasons, the Tribunal concluded that “[a]s detailed above and for the same reasons”, the Tribunal did not accept the applicant has a level of adverse profile such that he is of any adverse interest to the authorities or anyone else in Sri Lanka. This ground claims the Tribunal applied the incorrect test when assessing the applicant’s claims against s.36(2)(aa) of the Act.
The applicant appears to claim the Tribunal applied the incorrect test when it considered the complementary protection criterion because it asked the same question it asked when it considered whether the applicant had a well-founded fear of persecution. That question was whether the applicant had a particular profile that would cause him to be of adverse interest to the authorities or anyone else in Sri Lanka. That by itself, however, does not mean the Tribunal asked itself the wrong question.
The complementary protection criterion provided by s.36(2)(aa) of the Act, just like the criterion provided for by s.36(2)(a) of the Act, required the Tribunal to assess the risk of future harm to the applicant. The nature of the harm the applicant claimed he faced was one that arose from his having a particular profile, namely, being a male Tamil. Whether or not the applicant had that profile was relevant to the assessment both of harm under s.36(2)(a) of the Act and under s.36(2)(aa) of the Act. When assessing the risk of harm to the applicant, the Tribunal was aware that it had to assess that risk by reference to two different criteria, that provided for under s.36(2)(a), and s.36(2)(aa) of the Act. And that is what the Tribunal did. The Tribunal, therefore, did not misunderstand the question it was required to ask when assessing the applicant’s claims against s.36(2)(aa) of the Act.
Ground 1, therefore, fails.
Ground 2
The second ground is:
The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958.
Particulars
(a)Similarly to the findings in ARS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2135, the Tribunal failed to take into account the PAM 3 Protection Visas complementary protection guidelines when it made a finding on whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment.
Subsection 499(1) of the Act provides that the Minister may give written directions to a person or a body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Subsection 499(2A) provides that a person or body must comply with a direction given under s.499(1) of the Act. It is common ground the Minister made Direction 56 pursuant to s.499(1) of the Act. As Nicholas J noted in SZTCV v Minister for Immigration and Border Protection:[10]
[10] [2015] FCA 1309 at [9]-[10]
Direction 56 was issued pursuant to s 499 of the Act on 21 June 2013. It relevantly provides:
1.This Direction applies to a decision-maker performing function or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa. This direction is subject to the Migration Act and Regulations and other applicable laws.
2.In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.
‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’
‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’
…
The two documents referred to in para 2 of Direction 56 (“the PAM3 Guidelines”) set out guidelines and related information as to the background, purpose and application of the complementary protection provisions of the Act.
The Minister submitted the Tribunal was aware of Direction 56, and the “PAM3: Refugee and humanitarian – Complementary Protection Guidelines” and the “PAM3: Refugee and humanitarian – Refugee Law Guidelines” (PAM3) to which it refers. That is so because the Tribunal said it considered PAM3:[11]
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration and the Tribunal has done so.
[11] CB331, [19]
Further, after referring to the country information that was detailed in the delegate’s decision and also in the submissions made by the applicant’s agents, the Tribunal said it had “considered that information including PAM3 guidelines”.[12]
[12] CB338, [67]
The Minister also submitted that the applicant bears the burden of showing that the Tribunal has not taken into account Direction 56,[13] and, in any event, the Minister submitted the Tribunal’s consideration of whether a brief detention in prison in conditions it described as “cramped and probably unsanitary” could amount to significant harm, indicates the Tribunal did actively consider Direction 56. The Minister also submitted the approach of the Tribunal in the case before me was similar to the approach the Tribunal took in AUE15 v Minister for Immigration and Border Protection.[14]
[13] Relying on AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 at [47] (Barker J)
[14] [2016] FCA 331 at [31]-[38]
The applicant, on the other hand, relies on the decision of Judge Street in ARS15 v Minister for Immigration & Anor.[15] In that case the Tribunal identified Direction 56 in terms almost identical to those by which the Tribunal before me identified Direction 56. His Honour was satisfied that, notwithstanding the Tribunal’s reference to Direction 56, the Tribunal did not in fact take it into account. His Honour considered it “decisive” that the Tribunal did not refer to Direction 56 when it identified the matters it had taken into account.[16]
[15] [2015] FCCA 2135
[16] [2015] FCCA 2135 at [6], [10]
The facts in ARS15 are distinguishable from those of the case before me. First, as I have already noted, when referring to the country information that was detailed in the delegate’s decision and also in the submissions made by the applicant’s agents, the Tribunal said it had “considered that information including PAM3 guidelines”.[17] Thus, unlike the Tribunal in ARS15, the Tribunal expressly referred to its having considered the PAM3 guidelines when it referred to country information. Second, the Tribunal before me referred to the conditions in Negombo prison being cramped and probably unsanitary. That indicates an engagement with Direction 56 not apparent in the Tribunal’s decision in ARS15.
[17] CB338, [67]
I am not satisfied the Tribunal did not take into account Direction 56. For that reason, therefore, ground 2 does not succeed.
Ground 3
The third ground is:
The Tribunal failed to take into account a relevant consideration in relation to complementary protection.
(a) In Portorreal v Dominican Republic, Comm No 188/1984, UN Doc CCPR/C/OP/2 (5 November 1987) was a decision in which there was close analysis of the conditions to which the person was exposed for no more than 50 hours, but nonetheless there was a finding of a violation of Article 7. Those conditions are similar to those that obtain in Negombo Prison in Sri Lanka.
Portorreal v Dominican Republic[18] is a decision of the Human Rights Committee (HRC), being the body that was established by the International Covenant on Civil and Political Rights (ICCPR)[19] to ensure compliance with that instrument by the States parties.[20] As noted by Judge Street in ARS15, Portorreal “was a decision in which there was close analysis of the conditions to which the person was exposed for no more than 50 hours, but nonetheless there was a finding of a violation of Article 7” of the ICCPR.[21] The HRC made the following findings:
[18] Comm No 188/1984, UN Doc CCPR/C/OP/2 (5 November 1987)
[19] ICCPR articles 28 and 41
[20] SZTAL v Minister for Immigration & Anor [2015] FCCA 64 at [28] (Judge Driver)
[21] ARS15 v Minister for Immigration and Citizenship [2015] FCCA 2135 at [7]
2.2 Later the same day, the author was allegedly separated from the other political opposition leaders and transferred to another cell (known as the “Viet Nam cell”),measuring 20 by 5 metres, where approximately 125 persons accused of common crimes were being held. Conditions were allegedly inhuman in this overcrowded cell, the heat was unbearable, the cell extremely dirty and owing to lack of space some detainees had to sit on excrement. The author further states that he received no food or water until the following day.
…
9.2 Mr. Ramon B. Martinez Portorreal is a national of the Dominican Republic, a lawyer and Executive Secretary of the Comite Dominicano de los Derechos Humanos. On 14 June 1984 at 6 a.m., he was arrested at his home, according to the author, because of his activities as a leader of a human rights association, and taken to a cell at the secret service police headquarters, from where he was transferred to another cell measuring 20 by 5 metres, where approximately 125 persons accused of common crimes were being held, and where, owing to lack of space, some detainees had to sit on excrement. He received no food or water until the following day. On 16 June 1984, after 50 hours of detention, he was released. At no time during his detention was he informed of the reasons for his arrest.
I assume that Portorreal is referred to in “PAM3: Refugee and humanitarian – Complementary Protection Guidelines” and “PAM3: Refugee and humanitarian – Refugee Law Guidelines”. The Tribunal did not refer to Portorreal. That does not necessarily mean the Tribunal did not consider it. Assuming that Portorreal is referred to in PAM 3, and given I am not satisfied the Tribunal did not consider PAM3, I am not satisfied the Tribunal did not consider Portorreal.
Ground 3, therefore, also fails.
Disposition
The applicant has failed on all of his grounds. I propose, therefore to order that the application be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 9 December 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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