BUP15 v Minister for Immigration

[2016] FCCA 3113

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUP15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3113

Catchwords:
MIGRATION – Judicial review of decision of Administrative Appeals Tribunal (Tribunal) – whether applicant unable to follow procedures of the delegate or of the Tribunal – whether material could reasonably show the applicant did not understand procedures – whether the Tribunal failed to consider evidence – whether failure to consider evidence amounts to jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Cases cited:

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317;(2013)

212 FCR 99

Applicant: BUP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2450 of 2015

Judgment of: Judge Manousaridis

Hearing date: 23 November 2016

Delivered at: Sydney

Delivered on: 2 December 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms N Blake of

Clayton Utz

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2450 of 2015

BUP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Sri Lanka and a Tamil, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

2. The applicant arrived in Australia on 18 July 2012 by boat and, on 14 December 2012 the applicant applied for a protection visa which was refused by a delegate of the Minister on 20 September 2013. The applicant applied to the Tribunal for review of the delegate’s decision on 30 September 2013, and the Tribunal affirmed the delegate’s decision on 11 August 2015.

Claims for Protection

1. The applicant claimed, in a statutory declaration[1] that accompanied his application for a protection visa, that he and his family had been repeatedly displaced due to the war and forced to live in refugee camps. The applicant claimed that from 2006 to 2009 he worked for a company that was owned by a Tamil man, Mr R. In 2007, the Liberation Tigers of Tamil Eelam (LTTE) demanded Mr R provide support to them in the form of labour. The applicant and two others were forced to provide labour to the LTTE and “had to use the company’s machines and dig bunkers around the public buildings such as schools and hospitals”. The applicant feared he had no choice but to do this, because if he did not, he would be required to fight on the LTTE “front line” once a month as all Tamils living in his area were made to do. The applicant carried out this work “on and off” from 2007 to 2008, once or twice a month and, in November 2008 until early 2009, the applicant was forced to work with the LTTE for three months cleaning up the areas where the army had attacked and building bunkers.

   [1] CB56-59

2. After the Sri Lankan army defeated the LTTE, the applicant and his family lived in a refugee camp that was controlled by the national army, who began detaining LTTE members, interrogating them and demanding they identify others who had been involved in the LTTE. Some LTTE members identified the applicant as being someone who assisted them. In March 2009 the applicant was interrogated by the national army and the Criminal Investigation Department (CID). After being asked about his involvement with the LTTE, the applicant told “them everything I knew and all what I had done”. The army and the CID accused the applicant of building bunkers and hiding weapons, to which the applicant responded he knew nothing about the weapons or there possible whereabouts. The applicant was detained in a room for five days, beaten daily, and accused of being an LTTE supporter. After five to six days, the applicant was released.

3. The applicant returned to the camp to be with his wife and children, and remained there for three days. The Karuna Group, Eelam People’s Democratic Party (EPDP), and the CID came to the camp and interviewed the applicant. The applicant was detained for a further seven days, beaten, and interrogated about his knowledge of the LTTE weapons. The applicant repeated what he had said when previously interrogated. The applicant was released but officers informed him they would “call me back again for further interviews”. The applicant, fearing for his life, fled the camp with a large group of Tamils.

4. The applicant moved to Vavuniya, but he lived there in fear. In or around March 2012, the Kothabaya Group CID went to the applicant’s home and ordered he report to the nearby office of the Kothabaya group. The next day the applicant reported to the office with his wife, where the applicant was again interrogated about the same matters. The applicant was released on the same day and returned home. The applicant’s neighbours were also interviewed by the same authorities and informed the applicant there was a white van looking for him. Twenty days later the applicant’s wife called the applicant while he was at work informing him the authorities had called to their family home and “called [the applicant] to their headquarters”. The applicant, fearing for his safety, fled to Jaffna, and then to his uncle’s home where he made arrangements to flee Sri Lanka. The applicant’s wife informed the applicant that after he left Sri Lanka, the authorities have contacted the applicant’s wife on three or four occasions in search of the applicant, the last occasion being in November 2012.

5. The applicant claimed he fears he will be arrested on the basis of imputed political opinion, being wrongly accused of being a member of the LTTE, and detained and killed by the authorities if he returns to Sri Lanka. The applicant also claims he will be interrogated and subjected to degrading and humiliating treatment by the authorities and the Singhalese. The applicant further claimed he is limited to the places he can live in Sri Lanka because of his ethnicity and fears the Singhalese will harm him if he attempts to relocate to a Singhalese area.

Tribunal’s decision

1. The Tribunal accepted the applicant carried out labour work for the LTTE at the request of his employer between 2007 and 2009 and that, between November 2008 and early 2009, the applicant cleared up areas where the Sri Lankan Army had attacked the LTTE during the war.[2]

   [2] CB270, [37]

2. The Tribunal also accepted that after the LTTE was defeated, the applicant and his family lived in a refugee camp controlled by the Sri Lankan Army and that, while the applicant was in the camp, he was falsely identified by LTTE members as a person who had assisted the LTTE. The Tribunal accepted the applicant was called by the Sri Lankan Army and the CID; interrogated in relation to his involvement with the LTTE; detained for five days; accused of being a LTTE supporter and mistreated; that the applicant was released and a few days later was interrogated by Tamil paramilitary groups who had moved into the camp; that the applicant was detained for another seven days, mistreated and interrogated about his knowledge of the LTTE weapons; and, that when he was released he was told he would be called again for interrogation.[3]

   [3] CB270-271, [38]

3. The Tribunal, relying on country information, did not accept the applicant’s claims that the applicant and his family, and a large group of other Tamils fled the camp; or that the applicant did not encounter any further difficulties from the Sri Lankan Army, the CID or paramilitary groups until March 2012 when the applicant was asked to report to a local CID office; or that the applicant was subjected to further interrogation. Instead, the Tribunal found the applicant left the refugee camp in 2009 and the authorities had no further adverse interest in the applicant. The Tribunal relied on the following reasons.[4]

   a)The Tribunal was not satisfied, relying on country information, that the applicant would have been the subject of the authorities’ ongoing interest for the type of work the applicant had carried out for the LTTE during the war.[5]

   b)The Tribunal considered it reasonable to expect that had the applicant been of any interest to the Sri Lankan authorities for the reason of the applicant’s perceived association with the LTTE or the nature of the work he had undertaken or was perceived to have carried out, the applicant would not have been released after being interrogated by authorities on two separate occasions in the camp.[6]

   c)The Tribunal did not accept the applicant was in hiding following his claimed escape from the camp and was of the view the authorities had ample opportunity and knowledge of the applicant’s location and circumstances to enable them to find him with ease. The Tribunal found the applicant was unable to provide a persuasive reason why the authorities had waited for three years after he had left the camp to pursue him, and the applicant provided no credible or convincing reason why the authorities had become interested in the applicant again in 2012.[7]

   d)The Tribunal found the applicant provided inconsistent and unpersuasive evidence about his encounters with the authorities in 2012, and his circumstances at that time.[8]

   [4] CB271, [39]

   [5] CB271, [40]-[41]

   [6] CB271, [42]

   [7] CB272, [43]

   [8] CB272-274, [44]

4. The Tribunal, therefore, did not accept the applicant had escaped from the camp, or that, after leaving the camp with his family in 2009 the authorities had any adverse interest in the applicant because of the work he had carried out with the LTTE because he was perceived as having helped bury weapons during the civil war or because, more generally, he was perceived as having been involved with the LTTE; or, that in 2012 the applicant was summoned for interrogation, or assaulted and mistreated. The Tribunal also did not accept that after the applicant departed Sri Lanka, the authorities had contacted the applicant’s wife on a number of occasions in search of his whereabouts, or that the applicant’s wife has been harassed or threatened with sexual assault as a result of the authorities searching for the applicant.[9]

   [9] CB274, [46]

5. The Tribunal was not satisfied the applicant has a profile that would subject him to a real chance of serious harm because of the labour work the applicant carried out for the LTTE, or for the reason of his actual or imputed pro-LTTE political opinion, or that the applicant will be imputed to be an LTTE member.

6. The Tribunal also considered whether the applicant had a well-founded fear of persecution because he is of Tamil ethnicity, but, based on country information, it was not satisfied the applicant faces a real chance of being seriously harmed because of his ethnicity. The Tribunal also considered whether the applicant had a well-founded fear of persecution because, if returned to Sri Lanka, he will be a failed asylum seeker, and because he had departed Sri Lanka illegally. Relying on country information, the Tribunal was not satisfied the applicant faced a real chance of serious harm for those reasons.

7. Finally, the Tribunal assessed the applicant’s claims against s.36(2)(aa) of the Migration Act 1958 (Cth), but concluded it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant will be subjected to any significant harm.

Grounds of Review

1. The application filed with this Court contains the following unparticularised grounds of application:

   1.That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

   2.More details will be provided by the legal representative.

2. The applicant, who is not legally represented, made a number of submissions. The first is that he cannot return to his country because he will face harm there. That does not disclose any jurisdictional error by the Tribunal.

3. Second, the applicant said he could not follow the procedure of the delegate or of the Tribunal, and he was unable to read correspondence from the Department of Immigration and Border Protection. The applicant made that assertion from the bar table. Even if, however, the applicant had made that assertion under oath, I would have had difficulty in accepting it. The applicant was represented both before the delegate and before the Tribunal. In any event, even if the applicant did not understand or fully understand the procedures, there is nothing to suggest his representatives engaged in any fraudulent activity; and the material before me is incapable of suggesting that the Tribunal was or ought to have been aware the applicant did not understand the procedures.

4. Third, the applicant appeared to submit the Tribunal incorrectly found the applicant gave inconsistent evidence about a particular date. It was not clear to what the applicant intended to refer. The Tribunal identified a number of inconsistent statements the applicant made at different stages of his application for a Protection visa and in his application for review to the Tribunal. The inconsistencies the Tribunal found are set out in paragraph 44 of its reasons for decision. One of these inconsistencies concerned the dates the applicant claimed the CID came to his house. The Tribunal noted that in his entry interview, the applicant said the CID came to his house in January or February 2012, yet, in his statutory declaration, the applicant said the CID visited his house in March 2012.[10] The Tribunal correctly reflected what the applicant said at his entry interview[11] and in his statutory declaration.[12]

   [10] CB272, [44]

   [11] CB14

   [12] CB58

5. Fourth, the applicant submitted that he had provided to the Tribunal two documents which showed he had been summonsed to attend a police station, one on 26 November 2013 (November summons) and one on 15 April 2012 (April summons), but the Tribunal referred only to one of the documents. The two documents the applicant provided to the Tribunal are in evidence,[13] and, apart from the date, are in identical terms. They both request that the applicant be notified “to report to Criminal Unit of Police Station, Negombo”.

   [13] CB246-CB251

6. The Tribunal expressly referred to the April summons. The Tribunal said:[14]

   Having regard to the reasons already given and the Tribunal’s findings concerning the applicant’s credibility, it does not give any weight to the document, purportedly issued by the Sri Lanka Police, requesting the applicant to report to the ‘Criminal Unit of Police Station in Negombo on 15 April 2012’.

   [14] CB274, [47]

7. I have taken the applicant to submit that the Tribunal did not consider the November summons. I am not prepared, however, to find the Tribunal did not consider the November summons.

8. Even if I were to find the Tribunal did not consider that document, that would not lead me to conclude the Tribunal made a jurisdictional error. The potential relevance of the November summons is that it provided corroboration to the applicant’s claims. In Minister for Immigration and Citizenship v SZRKT Robertson J considered the circumstances in which the Tribunal is obliged to consider documents that are claimed to corroborate a claim. His Honour said:[15]

   [W]hether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.

   [15] [2013] FCA 317; (2013) 212 FCR 99 at [112]

9. Given that the Tribunal gave no weight to the April summons, and the November summons is in substantially the same terms as the April summons, it is inevitable the Tribunal would also have given the November summons no weight, just as it gave no weight to the April summons.

10. I now return to the grounds stated in the application. Ground 1 does not identify any jurisdictional error because it is an unparticularised conclusion. Ground 2 is not a ground of review, but only serves to give notice that further details would be provided by a legal representative. The applicant has been unable to obtain a lawyer.

Conclusion

1. The applicant has not established the Tribunal made a jurisdictional error. I propose, therefore, to dismiss the application.

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

Date: 2 December 2016