BTD16 v Minister for Immigration

[2018] FCCA 185

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTD16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 185

Catchwords:
MIGRATION – Application for judicial review – protection visa – whether integer of claim dealt with – no matters of principle.

PROTECTION VISA – Fourteen month delay in giving decision – no matters of principle.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R

Cases cited:

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470

Applicant: BTD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1482 of 2016

Judgment of: Judge Riethmuller

Hearing date: 13 December 2017

Date of Last Submission: 13 December 2017

Delivered at: Melbourne

Delivered on: 30 January 2018

REPRESENTATION

Solicitors for the Applicant: Shelly Legal

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. A writ of certiorari issue, quashing the decision of the Second Respondent dated 29 June 2016.

2. A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $2,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1482 of 2016

BTD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 29 June 2016, affirming a decision of a delegate to the minister not to grant the applicant a protection visa.

2. The applicant is a male citizen of Sri Lanka who arrived in Australia on 29 June 2012 as an unauthorised maritime arrival.  The applicant sought a protection visa on 8 November 2012, setting out a number of claims, including:

   a)That he feared harm as a young Tamil male in Sri Lanka,

   b)That he was a failed asylum seeker who had left Sri Lanka illegally,

   c)That he was a person who had been harassed by the Sri Lankan Army because he was fishing without a permit,

   d)That his village had been targeted by “grease men”, who would abduct and attack women, and that he would stay up at night in order to protect his mother and sister; and

   e)That in 2006, his brother-in-law was abducted by some men in a white van and detained for a number of days before being released when a ransom was paid.

3. The initial material provided by the applicant in support of his claim is annexed to an affidavit of Ms Stone, filed in these proceedings (p.15). 

4. At an initial interview, the applicant said that there was a problem with the “grease devil” and that it was happening in the Tamil areas only.  The applicant said that it happened for one month in his area and that he and his family could not sleep at night, as they had to protect their house and their area.  The applicant described having seen the “grease devil” as being “Silver colour, spring shoes I saw only the reflection of him I didn’t see him directly”. 

5. With respect to the fear of “grease men” the applicant elaborated in a statutory declaration (which appears at court book p.67) where the applicant explained that in August 2010, there was a problem with “grease men” who would attack and abduct women, cutting off their breasts and killing them.  The applicant said that he was forced to stay up all night looking out for his mother and sisters to ensure that they were safe, and this also made it hard for him to go to work during the day and leave them behind. 

6. The issue of the “grease men” was a significant issue dealt with by the delegate, as appears in the delegate’s reasons at p.99 of the court book.  The delegate, after taking evidence, noted that the applicant had a friend who had seen people standing on roofs and jumping inside houses and that the attacks had been reported as being against Muslims or Tamils, rather than the majority Sinhalese community. 

Ground One

1. Ground one is framed as follows:

   The Tribunal has failed to deal with the full integers of the Applicant’s claims, namely to deal with a claim to fear harm arising from the “grease men attacks” under the complimentary protection provision.

   Particulars

   1. The Applicant squarely raised a claim to fear harm arising from the “grease man” attacks.

   2. The Tribunal only dealt with the claim under the Refugee Convention (see paragraph [39]) of the decision) and failed to deal with the claim under the complimentary protection provisions;

   3. The findings at paragraph [39] were “bound up” in Refugee Convention reasoning and not dispositive of the claim;

   4. The Tribunal has therefore failed to complete the task of jurisdiction embarked upon.

2. In the decision by the Tribunal, made after an oral hearing with the applicant some 14 months earlier, the Tribunal refers to these issues in a number of paragraphs, as follows:

   26. I asked the applicant again what he fears if he were to return to Sri Lanka.  He said his brother-in-law is in Mullaittivu, he is too afraid to go home because they would come looking for him.  So if the applicant were to return, they would take the applicant in the absence of his brother-in-law.  He added that if he were (hypothetically) to be arrested in Australia he [can] be sure to be treated within the law, whereas in Sri Lanka he could be taken anywhere and killed.

   …

   28. I referred to his claim in his statutory declaration relating to fear of ‘grease men’ and asked whether he continues to be a source of fear.  He replied that it was an incidence [in] the past and he cannot predict if it will happen again.  He said it was a concern when he left Sri Lanka in 2012.  Noting that his fear of ‘grease [men]’ was fear for his mother and sisters leading to him staying up all night to protect [them], I asked him to explain how her considered that his mother and sisters would be safer by leaving them and coming to Australian.  He replied it was because his brother-in-law was there.  I put to the applicant that his evidence earlier was that his brother-in-law was too afraid to go home which is inconsistent.  The applicant replied that his mother sent him to Australian to protect him and was comforted by his brother-in-law frequently returning home.

   …

   36.  I accept that the applicant’s brother-in-law was kidnapped for a ransom in 2006.  Reports from a number of sources indicate that kidnapping for ransom frequently occurred throughout Sri Lanka.  I have otherwise found the applicant in relation to this claim to be wildly inconsistent and he appeared to make it up as the hearing progressed.  For example, in his statutory declaration of 23 October 2012 he states that his mother and two sisters live together with his brother-in-law; he said that he fished with his brother-in-law around Mullaitivu.  He said he feared ‘grease men’ would harm his mother and two sisters.  He also said that he feared returning because his brother-in-law remained around Mullaitivu as he was too afraid to return home because ‘they’ will look for him; and if not there ‘they’ would take the applicant.  I do not find the applicant to be a credible witness in this regard. I find that beyond the incident in 2006 there was not and there is not now any ongoing interest in the applicant’s brother-in-law by the authorities or any other group.

   …

   39.  Given the applicant’s concern for his mother and sisters leading him to ‘stay up all night’ in fear of attacks by grease men, and that his mother and unmarried sister depended on him, I asked the applicant to explain how he would better protect them by leaving Sri Lanka. He said that his brother-in-law was living at the house, therefore would provide protection.  That evidence became less reliable later in the hearing as can be seen above.

   In any event, I asked the applicant specifically about his fear of grease men, he replied that that was an incident that happened in the past and he cannot predict if it will happen in the future.  I have considered the applicant’ evidence and the country information relating to incidents involving grease men.  I find that it is not systematic and discriminatory conduct for the purposes of s.91R(1)(c).  I further find that the conduct feared does not have the necessary persecutory quality to warrant protection. Tamil/Imputed political opinion/LTTE

3. In submissions before me, counsel for the Minister accepted that para.26 of the reasons referred to the “grease men”, not to the applicant’s fears with respect to the authorities, although the narrative given in that section of the decision is not particularly clear.  This part of the reasoning followed discussing his brother-in-law abduction, apparently by authorities, but in the third sentence refers to an apparent comparison between Australian and Sri Lankan authorities’ treatment of detainees.  The flow of the reasons from para.26 to para.28 makes it difficult to determine whether ‘they’ in para.26 is the brother-in-law’s abductors or the ‘grease men’. 

4. It appears that para.36 is dealing with the claim that the applicant’s brother-in-law had been kidnapped, but relying upon what was said to be inconsistencies in his version of events with respect to “grease men” in order to reject his credibility as a witness with respect to the kidnapping event.  There is little given as to the reasons for rejecting his credibility and it appears to be based upon what was seen as inconsistencies in his explanation about his fears of “grease men”.

5. The reasons given in para.38 show that the Tribunal member accepted that there had been incidents with respect to attacks of the type described as being undertaken by “grease men”. 

6. The first half of para.39 refers to the inconsistency that the Tribunal member saw in the evidence given by the applicant, although does not reach a formal conclusion. The second part of para.39 disposes of the “grease men” claim on the basis that the Tribunal member concluded that it was neither systematic discriminatory conduct, nor ‘persecutory’ , and therefore does not come within the definition of s.36 of the Migration Act 1958 (“the Act”). 

7. The difficulty (aside from the lack of clarity of the reasons) is that they do not deal with the complementary protection provisions which do not have a requirement that the conduct be as a result of membership of a particular social group. The Tribunal member dealt with the s.36(2)(aa) issues in one brief paragraph, saying:

   67.  Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

8. There is no doubt that the Tribunal member was aware of the different nature of the s.36(2)(aa) claims as the Tribunal member went to some lengths to discuss the operation of s.36(2B)(c) with respect to the applicant’s claims to fear harm as a person who departed illegally from Sri Lanka (see paras.63 and 64).

9. It was argued by the first respondent that the claim by the applicant related solely to fear of harm to his mother and sisters and not to any fear of harm to himself.  On this basis, it was argued that the findings with respect to credibility and the availability of his brother-in-law to protect his mother and sisters led to the Tribunal member effectively dismissing this part of the claim.  However, this is not what the reasons say.

10. This also presents other difficulties.  First, if the claim was only with respect to fears for his mother and sisters, then it is difficult to see that it could be the basis for a protection visa for him in any event, given that his mother and sisters remained in Sri Lanka.  On this view, one would expect a simple statement that there was no threat of harm to the applicant, to dispose of the claim.  Secondly, it is clear from the reasoning that the applicant felt he had an obligation to protect his mother and sisters and it appears, from the reasoning, that the applicant also was fearful of the “grease men” hence had a desire not to return because his brother-in-law would then not remain, effectively leaving him alone to defend his mother and sisters.  Thirdly, if one were to understand the applicant’s evidence in this light, the Tribunal’s conclusions that his evidence was inconsistent are difficult to sustain.  That is, if the applicant was fearful of harm to himself in the act of defending his mother and sisters from the “grease men”, and his mother was similarly fearful, hence sending him to Australia, and his brother-in-law took over the role of defending family members, his mother remained defended and he was out of harm’s way.  On such a narrative, the version does not appear to be inconsistent.  It also seems realistic that if there were attacks by criminals described as “grease men”, defenders of the innocent victims would be likely to be in harm’s way.

11. When taken as a whole, it appears that the case must have been put on the basis that the applicant feared personal harm from the “grease men”.  As there is no transcript placed before this court, this cannot be verified against a transcript, but drawn only from the reasons for decision of the Tribunal member.

12. Once it is accepted that the applicant feared harm from “grease men”, one cannot avoid the proposition that the claim was dismissed on the basis that it was not systematic or discriminatory conduct for the purpose of s.91R of the Act. Systematic or discriminatory conduct is not a necessary element for the claim under s.36(2)(aa). As this was the basis for the refusal of this claim, and it was not an element under s.36(2)(aa), the claim needed to be assessed in the context of s.36(2)(aa), in more detail than the brief statement in para.67 of the decision, at the end.

13. In these circumstances, I am ultimately persuaded that the Tribunal member has not dealt with all of the integers of this particular claim in the context of this case.  The applicant has therefore established this ground.

Ground Two

1. I turn then to consider the alternative ground for judicial review, which is that there was a significant delay, and that that delay was such as to lead to a conclusion that the Tribunal’s decision was affected by jurisdictional error, as a result of the impairment upon the Tribunal member’s ability to deal with the claim by way of assessing the evidence and evaluating the claims, as a result of the delay that occurred in this case: see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470.

2. Ground two is framed as follows:

   The Applicant was denied procedural fairness because the decision was attended by inordinate delay.

   Particulars

   1. In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, a four year delay was considered to be inordinate;

   2. In the instant matter the AAT took approximately 14 months to reach its decision, with no reason provided for the delay.

   3. The Tribunal held that the Applicant was not a credible witness.

   4. In the circumstances, the Applicant was denied an opportunity of gaining favourable credit inferences on the basis of demeanour.

3. The delay in NAIS was extraordinary, and well beyond the delay in this case, of 14 months.  A further differentiating factor in this case was that the delay in NAIS included a significant delay between two different hearings, which ultimately required some comparison in order to make findings as to credibility.

4. In this case, the delay involved was nonetheless for a significant period (14 months).  However, it would be an error to simply assess this ground upon the basis of the period of delay in isolation.  For example, in a case that turns entirely on a question of law, it is unlikely that delay can be said to significantly affect the decision-making process.  Whereas, in a case that depends entirely upon the impression of witnesses giving evidence in the witness box, with little or no extrinsic evidence, the delay may well be much more significant.

5. The extent to which the delay may or may not have impaired the decision-maker’s capacity to carefully assess the evidence can also, to some extent, be assessed by considering the terms of the decision that is ultimately given.  In this case, the lack of clarity with respect to the precise nature of the fear of “grease men”, and the degree of confusion as to the basis upon which the “grease men” claim was disposed of, weighs in favour of the applicant’s complaint that ultimately he was denied procedural fairness because of the delay.

6. Whilst there was a credibility finding that was said to be based upon the applicant appearing “to make it up as the hearing progressed”, the details of the material relied upon in this regard were the single example of the Tribunal’s concern that there was an inconsistency relating to him leaving the household when his female relatives feared the “grease men”, as set out in para.36.  The reasons indicate that there was more than the alleged inconsistency on this point, but nothing else appears in the decision.  There are no specific observations with respect to his demeanour or presentation at the hearing or other examples.

7. Given the period of delay in this case, in the context of the nature of the reasons given, I am ultimately persuaded that this case does cross the threshold, and jurisdictional error has been established on this basis.

8. I will therefore order that constitutional writs issue.

9. At the end of the hearing, the parties agreed with respect to costs (dependent upon the outcome), and accordingly I order the first respondent pay the applicant’s costs in the sum agreed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  30 January 2018