BWM15 v Minister for Immigration

[2016] FCCA 2207

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWM15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2207

Catchwords:
MIGRATION – Application for protection visa – review of decision of the Refugee Review Tribunal – whether the Tribunal erred by failing to deal appropriately with the applicant’s issues – no jurisdictional error – application dismissed.

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510; [1997] HCA 14

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62

Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALD 347; [1994] FCA 1105

Applicant: BWM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2521 of 2015

Judgment of: Judge Smith

Hearing date: 2 August 2016

Date of Last Submission: 2 August 2016

Delivered at: Sydney

Delivered on: 2 August 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S. Burnett, Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2521 of 2015

BWM15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 20 July 2012 and lodged a protection visa application on 13 December 2012. On 13 March 2014, a delegate of the Minister made the decision to refuse to grant that visa and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. The Tribunal affirmed the delegate’s decision on 4 September 2015. The applicant now seeks judicial review of the Tribunal’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. In his application, there are two grounds. The first is that the Tribunal decision was not supported by any evidence, and the second is that the Tribunal did not fully deal with the applicant’s problems.

3. The applicant appeared unrepresented at the hearing before the court and argued, essentially, that the error made by the Tribunal was that it did not make proper inquiries into the circumstances in Sri Lanka. The focus of the oral submissions was on two particular aspects of the Tribunal’s decision. The first was about certain incidents that the applicant claimed had occurred in connection with him and his family in the past, and the second concerned the general situation in Sri Lanka following the conclusion of the civil war in 2009, particularly as it relates to people of Tamil ethnicity such as the applicant.

4. In order to understand those issues and to determine whether or not the applicant is correct that the Tribunal made the errors that he asserts, it is necessary first to consider the claims made by the applicant and then the way in which they were dealt with by the Tribunal. The claims made by the applicant in support of his protection visa application were summarised by the Tribunal at [11] of its reasons as follows:

   ·He was born in Negombo, Gampaha, Western Province, Sri Lanka, in 1981. His ethnicity is Tamil and he is a Christian. He lived at an address in Mankuliya village, Negombo, from 1981 to about 1992 and at another address, in the same area, from then until July 2012. He received a total of eleven years of formal education in Negombo, ending in 1997, and had seasonal employment as a fisherman, in Negombo, Trincomalee, Kalpitiya and Valaichenai from 2003 to July 2012. He is unmarried. His father died in 2007, his mother is living in Kuwait and his two older siblings live in Negombo.

   ·His parents were ethnic Tamils but because they moved to Negombo when they married his entire education was in Sinhala. His parents sometimes spoke to each other in Tamil at· home but they always spoke to their children in Sinhala.

   ·Although he was educated in Sinhala and had many Sinhalese school friends, he and his family were always treated differently by the surrounding community. This was particularly so when incidents of violence relating to Tamil separatism occurred.

   ·On many occasions he and members of his family were verbally abused on the streets by Sinhalese men who accused Tamils of being the cause of the death of many Sinhalese youths in the army and among civilians. On one occasion in 2003 he was abused and punched by a group of drunken Sinhalese. This caused him great anguish and frustration. He could not report the matter to the police as they turn a blind eye when Tamils lodge complaints.

   ·In his work as a fisherman from 2003 onwards he was treated differently on account of his ethnicity. He was only taken on when sufficient crew could not be found to man the boat. As a consequence of frequent abuse and discrimination he decided to go to Italy but this did not eventuate.

   ·He decided to change his family name from Perumalge to Warnakulasuriya to resemble an ethnic Sinhalese name and he provided public notice of the change.

   ·This change of name did not improve the way he was treated by Sinhalese but only made matters worse as many of them ridiculed him because of it, telling him he would always remain a Tamil. Further, there was an incident in Trincomalee when he was stabbed by a Tamil who referred to his name change. Some of his Sinhalese crew mates had told their Tamil friends about it.

   ·Following this incident he always remained on board the boat when he was staying on the east coast. He received various threats on his mobile telephone from anonymous callers who warned him not to return to Trincomalee or other parts of the east coast or his life would be in danger.

   ·In 2011 he worked ‘selectively’ while the threats and abuse continued. The situation became unbearable and he decided the only option was to flee the country.

5. The applicant also claimed that he would be harmed upon return to Sri Lanka because he had left Sri Lanka illegally and that he would be prosecuted for having done so. On the other hand, he claimed that he did not fear harm on return to Sri Lanka for having claimed asylum in Australia. In addition to those claims, the applicant said that he would face difficulties if he were taken into custody on return to Sri Lanka because there would be a problem when his mother and siblings came to visit him because they had Tamil names and he had a Sinhalese name.

6. The problem he said would be that the police might think it suspicious and suspect that he had some involvement in the LTTE[2]. The applicant’s adviser submitted that the applicant’s problem was that he was caught between two communities and can no longer belong to either one. This was a result, it was said, of the applicant having changed his name.

   [2] Liberation Tigers of Tamil Eelam.

Tribunal’s decision

1. The Tribunal accepted that the applicant was an ethnic Tamil and that in 2007, he had formally changed his name from a Tamil name to a Sinhalese name. He was known by that new name up until the time he had left Sri Lanka in July 2012.

2. However, the Tribunal had strong doubts about the applicant’s account of his experiences in Sri Lanka for essentially four reasons. The first was, the Tribunal said, that there were obvious and significant inconsistencies in the evidence given by him to the Tribunal and that given in the entry interview when he first arrived in Australia. Secondly, his evidence at the hearing was vague and unenlightening on the question of the harm he had suffered fin Sri Lanka. Third, although the applicant was given multiple opportunities at the hearing to explain all of the harm he had suffered in Sri Lanka, he made no reference to certain claims that had earlier been made.

3. Finally, the Tribunal found it difficult to understand why the applicant would have a fear of physical harm which was so strong that forced him to flee Sri Lanka in 2012 when, on his own account, during his whole life he had suffered no more than minor injuries in two public encounters with drunks. The Tribunal concluded, on the basis of those considerations, that the applicant had not given a credible account of his experiences in Sri Lanka. It was not satisfied that he or members of his family were exposed to frequent abuse from Sinhalese men on the streets of Negombo or that the applicant was assaulted by a group of drunken Sinhalese men there in 2003.

4. The Tribunal was not satisfied that he was later attacked by drunken Tamils in Trincomalee. It did accept that the applicant did not have a permanent position in a fishing boat but was not satisfied that this prevented him from earning a living or that it reflected any element of discrimination on the grounds of his Tamil race, political opinion, the fact he had changed his name or any other factor. The Tribunal also found that although his identity papers were scrutinised more closely than those of Sinhalese, there was nothing to suggest that he was prevented from earning a living as a fisherman, that his movements were restricted or that he suffered any kind of harm from the authorities at any point.

5. The Tribunal then considered the claim arising from the change of name. It was not satisfied that he had been isolated and ostracised as a result of the change, and given that the applicant had formally and openly changed his identity, the Tribunal did not accept that the change in name would be seen as suspicious by the authorities or that it would put him at risk of harm.

6. The Tribunal then considered more general claims based upon the applicant’s ethnicity, political opinion, return as an asylum seeker and illegal departure. In these respects, having regard to country information (in particular reports from DFAT[3]) that the applicant faced any risk of harm that might bring him within the criteria for the grant of a protection visa. For those reasons, the Tribunal was not satisfied that the applicant met those criteria and so affirmed the decision of the delegate.

   [3] Department of Foreign Affairs and Trade.

Consideration

1. Before turning to deal with the precise way in which the applicant framed his arguments at the hearing before the court, I note that when the Tribunal’s findings are compared to the claims made by the applicant, as summarised above, it is clear that the Tribunal dealt with those claims. The Tribunal considered them, made findings about them, and in particular, as to whether or not those claims were made out on a factual basis and, to the extent that they were, whether or not they led to the applicant satisfying the criteria for the grant of a protection visa. In light of that, the suggestion in ground 2 of the written application that the Tribunal did not fully deal with the applicant’s problems is not established.

2. I return then, to consider the applicant’s real complaint as identified today and in ground 1 of the application. The applicant’s complaint is based upon the assumption that it is a matter for the Tribunal to make significant inquiries of its own not only into the circumstances as they pertain in Sri Lanka at the time of its decision, but also in relation to the particular events that the applicant claimed occurred and which established his well-founded fear of persecution or risk of significant harm.

3. However, whatever the Tribunal’s obligations are when it is required to review a decision of the delegate, they do not extend in every, or indeed necessarily in any case to such extensive inquiries. Ordinarily, it is a matter for an applicant to put before the Tribunal the material and the claims upon which he relies to satisfy the criterion for the visa. It is then a matter for the Tribunal to consider whether it accepts those claims. It does not need to have before it any evidence that contradicts the applicant’s own evidence before it arrives at a state of not being satisfied that the applicant’s claims are made out (see for example Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALD 347; [1994] FCA 1105, and also Abebe v Commonwealth (1999) 197 CLR 510; [1997] HCA 14 at [187]). That is not to say, of course, that the Tribunal can simply dismiss claims for no reason. There must always be a rational basis for the Tribunal’s decision and it is implicit in any power granted by the legislature that it is to be exercised according to reason.

4. Turning then, to the two specific elements of the Tribunal’s decision and the applicant’s complaints, it is evident that there was a rational basis for the Tribunal’s decision. First, in respect of the claims by the applicant about particular incidents that he claimed occurred to him in Sri Lanka, the Tribunal was not satisfied about those claims because it doubted their credibility. It gave four cogent reasons for those doubts. Taking one example, the failure by the applicant at the hearing to mention a certain claim, in spite of giving multiple opportunities to do so, is a logical reason for concluding that that claim in fact is not a true claim.

5. The basis for that logic is found simply in the fact that a person claiming to have feared harm in the past might be expected to remember the particular events upon which his claims are based. That is particularly so in circumstances where those claims have been expressed earlier. For those reasons, even though the Tribunal did not have contradictory evidence, as such, it was open to it for the reasons that it gave not to be satisfied of the credibility of the particular claims made by the applicant.

6. The second aspect of the applicant’s argument in court concerns the more general situation in Sri Lanka. He submitted that the whole world knows what is happening in Sri Lanka, only the Tribunal does not believe it and that the conflict has not yet been resolved in that country. The applicant added that the Tribunal had never visited Sri Lanka. The Tribunal does not say that it formed its view from any visit to Sri Lanka. Rather, it based a decision on the general aspect of the applicant’s claims on reports from government agencies such as DFAT.

7. That is not unusual, and indeed it is to be expected that a Tribunal might give some weight to information provided by Government agencies in respect of the political and other circumstances in foreign countries that might affect visa applicants in Australia (see for example the comments by McHugh J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 at 428). Each of the Tribunal’s findings concerning the situation that might affect the applicant in Sri Lanka was based upon an assessment of the information provided from independent sources, and for those reasons cannot be said to have been made without any evidence.

8. For that reason, it does not matter that unlike the applicant, the Tribunal may have not been to Sri Lanka and have made an assessment with its own observations. All that it was required to do was to have some logical basis for its decision, and in this case it was provided by that country information.

Conclusion

1. For those reasons, the applicant’s arguments and the grounds in the application do not establish any error which could justify setting aside the Tribunal’s decision, and there is otherwise no jurisdictional error in the Tribunal’s reasons. For that reason, the application must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 2 September 2016