BWA15 v Minister for Immigration

[2017] FCCA 1145

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWA15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1145

Catchwords:
MIGRATION – Application for Protection via – claims considered by the Tribunal – merits review – no legal error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476(1)

Applicant: BWA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2069 of 2015

Judgment of: Judge McNab

Hearing date: 9 May 2017

Date of Last Submission: 9 May 2017

Delivered at: Melbourne

Delivered on: 9 May 2017

REPRESENTATION

The Applicant in person

Counsel for the Respondent: Mr Cunynghame

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed 10 September 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2069 of 2015

BWA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. By an application filed on 1 May 2015 2015, the applicant seeks judicial review of a decision of the then Refugee Review Tribunal (‘the Tribunal”) dated 13 August 2015, to affirm a decision of a delegate of the first respondent not to grant him a Protection (Class XA) visa (“the visa”).

2. This proceeding is governed by the provisions of s.476(1) of the Migration Act.

3. The grounds of review set out in the application are that the decision of the Tribunal:

   (a) is affected by an error of law;

   (b) denied the applicant procedural fairness.

4. The Tribunal in its decision sets out the applicant’s claims to protection. In doing so it accurately paraphrased the information set out by the applicant in a statutory declaration provided to the Department dated 16 December 2013, a statement provided to the Tribunal by the applicant dated 15 July 2015 and a written submission from the representative of the applicant to the Tribunal dated 20 July 2015.

5. The Tribunal decision sets out the applicant’s claims that he had a well-founded fear of persecution from Sri Lankan authorities (including the police’s Criminal Investigation Department (“CID”) and Sri Lankan Army (“SLA”) and/or the Tamil Makkal Viduthalai Pulikal (“TMVP”) and/or the Pillayan group and/or the Karuna group) on his return to Sri Lanka because of his:

   a)Tamil ethnicity;

   b)Actual and/or imputed political opinion in support of the Liberation Tigers of Tamil Eelam (“LTTE”) and/or against the Sri Lankan authorities and/or paramilitary groups because of:

   i)his Tamil ethnicity;

   ii)his profile as a young Tamil male from the east of Sri Lanka who is the oldest sibling in the family;

   iii)his abduction at the hands of LTTE;

   iv)his aunt’s involvement in the LTTE;

   v)his uncle’s involvement in the LTTE; and

   vi)his departure from Sri Lanka and asylum claim in Australia.[1]

   [1] Tribunal decision dated 13 August 2015 [10].

6. The decision also makes reference to the claims that he had a well-founded fear of persecution by virtue of:

   a)his membership of a particular social group ‘family members of LTTE members/supporters/those accused of being an LTTE member/supporter’;

   b)his membership of the particular social groups ‘young Tamil males from Eastern Province’ and/or ‘young Tamil males from Batticaloa’; and

   c)his membership of a particular social group of ‘returned failed Tamil asylum seekers’.

Background

1. On 9 August 2012, the applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival and participated in an entry interview on 20 October 2012.

2. On 18 January 2013, with the assistance of a migration agent to represent him through the process, the applicant lodged an application for a Protection visa. His claims in support of the visa were supported by the documentation and submissions which have been referred to above and which are referred to in paragraph 10 of the Tribunal’s reasons.

3. The detail of the matters which were relied upon by the applicant in support of his claims are that:

   a)In 2005, the applicant was harassed by the army and the LTTE while travelling from his home village in Vavunatheevu, where he was attending a welding course.

   b)In 2005, the applicant was beaten by army members following a suicide bomb attack when many soldiers died. Around a month after he was beaten by the army, the LTTE attempted to forcibly recruit the applicant and took him to a local LTTE camp for training. The LTTE expected that one member of each family would join the LTTE to fight against the Sri Lankan army.

   c)The applicant was assisted to escape from the LTTE camp by his paternal aunt who was a member of the LTTE. He went and hid at his grandfather’s farm in Unnichchai.

   d)The LTTE looked for him at his grandfather’s house and the applicant escaped into the jungle.  The LTTE took his paternal grandfather as leverage in place of the applicant and his uncle was released after his aunt negotiated with the LTTE.

   e)In around 2006, the applicant moved to another town which was under the control of the Sri Lankan army to avoid the LTTE. The applicant commenced working for a local construction company as a driver.

   f)He claims around eight months after he arrived in that town, someone informed upon him to the Karuna group and members of the group approached the house where he was living and approached his employer. The following day CID members came looking for him at the house where he was living.

   g)On 26 April 2007, the applicant departed Sri Lanka lawfully on his own passport and travelled to Malaysia on a tourist visa. The applicant remained unlawfully in Malaysia following the expiry of that visa.

   h)In or around 2008, members of the Karuna group approached his family, obtained the applicant’s phone number and rang him while they were in the presence of his family. The Karuna group threatened to harm the applicant if he returned to Sri Lanka.  The Karuna group assaulted his father and detained him for three days.

   i)In or around 28 November 2012, CID members approached the applicant’s family and showed them Facebook photos of the applicant in Australia. The CID informed the applicant’s family that they were aware he was in Australia and commemorating the LTTE Heroes Day. The CID threatened the applicant’s family that if he ever returned to Sri Lanka they would kill him for supporting the LTTE.

4. These particulars were obtained from the outline of the respondent’s submissions and represent an accurate summary of the applicant’s claims which constituted the grounds for his fear of persecution.

The Tribunal Decision

1. The Tribunal, in its reasons, dealt with each of the applicant’s claims and did so in detail. I get no sense that the decision is a generalised rejection of claims.

2. The Tribunal accepted that the LTTE had forcibly attempted to recruit the applicant and that he had been abducted by the LTTE but found that the chance of the applicant being persecuted by authorities on the basis of a short-term abduction by the LTTE was remote.[2] The Tribunal considered the applicant’s claim to have left Sri Lanka in April 2007 primarily because of members of the CID and Karuna group had started to look for him.[3]

   [2] Tribunal decision dated 13 August 2015 [15]-[16].

   [3] Ibid [17]-[19].

3. The Tribunal did not accept that the applicant was of particular interest to those groups. The Tribunal accepted that in the context of the conflict then occurring, the applicant may have been accused of being an LTTE supporter by some men, particularly given that he had come from an LTTE controlled area.[4] However, the Tribunal did not accept that he was of particular interest to authorities and, in particular, the Tribunal doubted that the applicant would have been able to obtain a passport in his own name, successfully travel and depart Colombo and travel through Sri Lanka if he was of significant interest and at real risk of harm at that time.  In particular, the Tribunal stated:

   The Tribunal does not find the applicant’s explanation at the hearing that he did not have trouble at the checkpoints (when travelling to Colombo) because he had managed to obtain a national ID card, that his parents and the agent travelled with him, and that a work colleague from Puthukkudiyiruppu had helped him obtain a passport and that his agent helped him obtain a visa (to Malaysia) and get through the airport in Colombo to be persuasive.[5]

   [4] Ibid [19].

   [5] Ibid.

4. The Tribunal did not accept that the applicant was of personal interest to the authorities or paramilitaries for the reasons set out in paragraphs 16 and 19 of its decision.[6]

   [6] Ibid [20].

5. Otherwise, the Tribunal dealt with each of the applicant’s claims, considered them and concluded that the applicant was not at serious risk of persecution because of the particular attributes that he claimed would bring him to the attention of authorities.

6. In relation to the claim of persecution because of family connections, the Tribunal accepted that the applicant’s aunt and uncle were members of the LTTE.[7] However, the Tribunal found that the chance that the applicant would be perceived to have links with the LTTE on account of this was remote. The Tribunal referred to the applicant’s evidence at the hearing and found that his uncle was a low-level member of the LTTE who died in battle in 1997 and noted that the applicant did not indicate that he experienced any problems from Sri Lankan authorities or paramilitary groups or anyone else on account of his uncle’s involvement with the LTTE, nor have any of his family members including his father who remained in Sri Lanka.[8]

   [7] Ibid [35].

   [8] Tribunal decision dated 13 August 2015 [35].

7. The Tribunal found that there was nothing to suggest that his aunt was a high ranking member of the LTTE and that the applicant did not indicate that he or his family members experienced any problems from the authorities on the basis of his aunt’s involvement with the LTTE.[9]

   [9] Ibid.

8. The Tribunal has, by subject matter, considered each of the grounds raised by the applicant and dealt with those matters in detail. Having considered each of the matters cumulatively, it concluded that the applicant did not satisfy the grounds for the protection visa under either of the subsections of s.36(2) of the Migration Act.

9. The Tribunal dealt with the complementary protection grounds in paragraphs 57 to 61 of its decision.

10. Before the Court, the applicant raised that the Tribunal was in error in finding that he came here for work and he disputed that he came for work and he says that he came because of problems in his country. The applicant may have been confusing a decision made by the delegate in relation to those matters. It does not appear that there was a finding made by the Tribunal that he had come here for work.

11. The applicant also raised that he thought there was an error in the Tribunal’s approach to whether he was compelled to join the LTTE. The Tribunal dealt with those claims at paragraph 16 of its decision where the Tribunal accepted the claims that he had been abducted and accepted that the LTTE had attempted to forcibly recruit him and that he had managed to escape with the help of his aunt to avoid the LTTE for the next couple of years by moving to a government controlled area. Otherwise, the applicant claimed that the evidence that he gave was not fully understood or was wrongly decided.

12. The Tribunal dealt in detail with each of the claims made in very specific terms. It also dealt with the claims that he would suffer and be subjected to persecution upon his return to Sri Lanka as a failed Tamil asylum seeker. The Tribunal referred to the submissions made by the applicant’s representative,[10] and made reference to the country information that it had regard to.[11]

    [10] Tribunal decision dated 13 August 2015 [46]-[54].

    [11] Ibid [48]-[50].

13. The Tribunal concluded that the applicant was likely to face questioning at the airport as to his activities during the time that he had been abroad and that he may face questioning about his links that he may have with the LTTE but did not accept that he would have a profile such as to bring him to the attention of the authorities for any Convention reasons in the future.[12]

    [12] Ibid [51].

14. In my view, the applicant is seeking to engage in merits review of the Tribunal’s decision. I have read the decision of the Tribunal carefully and have had regard to the submissions that the applicant has made to the Court and can find no basis for setting aside the decision on the grounds of legal error.

15. Further, in relation to a claimed failure to accord the applicant procedural fairness, no particulars have been provided of that ground and nothing has been pointed to by the applicant which would suggest that there has been a failure to accord procedural fairness. The applicant was assisted in the process before the Tribunal by a legal representative.

16. It is apparent from the material that was filed on behalf of the applicant before the Tribunal that the legal representative from the Refugee and Immigration Legal Centre was experienced in these matters. The applicant was represented at the Tribunal hearing and it is apparent that matters adverse to him were raised in the Tribunal hearing and he was given an opportunity to respond to those matters.[13]

    [13] Tribunal decision dated 13 August 2015 [27], [40], [47].

17. At the commencement of the hearing, the applicant raised an application to adjourn the matter in order that he might obtain legal assistance. That application was refused on the grounds that he has been aware of the Tribunal’s decision since August 2015. On 21 September 2015, he was advised of a range of legal services who he could consult by a letter from the Minister’s legal representatives dated 21 September 2015. The applicant stated that, upon receipt of that letter, he had consulted with Victoria Legal Aid.

18. The applicant was represented by legal aid when he appeared at a directions hearing before Registrar Luxton on 17 February 2016 at which time orders were made for the applicant to file and serve any amended application and affidavits by 3 March 2017 and he was advised that the matter would be listed on 9 May 2017.

19. In circumstances where the applicant has had the opportunity to consult with lawyers since at least August 2015, in my view, it was not in the interests of justice to further adjourn the matter.

20. In the circumstances I dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  30 May 2017