BWN15 v Minister for Immigration

[2017] FCCA 2674

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWN15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2674

Catchwords:
MIGRATION – Application for protection visa – citizen of Sri Lanka – applicant challenges Tribunal’s reliance on country information – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a); 36(2)(aa); 447

Federal Circuit Court Rules2001 (Cth)
Immigrants and Emigrants Act 1948 (Sri Lanka)
Prevention of Terrorism Act 1979 (Sri Lanka)

Cases cited:

NAHI v Minister for Immigration [2004] FCAFC 10

Applicant: BWN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 51 of 2015

Judgment of: Judge Young

Hearing date: 15 March 2017

Date of Last Submission: 15 March 2017

Delivered at: Adelaide

Delivered on: 1 November 2017

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms S. Newman

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

DNG 51 of 2015

BWN15

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”) made on 26 May 2015 affirming a decision of the Minister’s delegate to refuse to grant the applicant a protection visa.

2. The application was made on 14 September 2015 and is about 2 ½ months out of time. The applicant seeks an extension of time within which to bring the application.

3. The applicant was unrepresented in the hearing before me. He was assisted by an interpreter.

   Background

4. The applicant is an ethnic Tamil from Sri Lanka. He is 39 years old. He arrived in Australia by boat on 7 August 2012. He applied for a protection visa on 14 November 2012. His claims, in summary, were as follows:

   ·    he is Tamil and subject to discrimination in Sri Lanka;

   ·    in 2006 he was arrested and tortured by the Sri Lankan army and released only after his wife paid a bribe. He was recorded as having been guilty of assisting the Liberation Tigers of Tamil Eelam (“LTTE”);

   ·    in 2008 he was threatened in Trincomalee by a Muslim man while buying dried fish and told not to come back to buy fish. He was later stopped at an army checkpoint and his fish were scattered on the ground;

   ·    he was assaulted in 2012 by Sinhalese traders in Mullaitivu while buying fish;

   ·    he complained to an officer at a local Sri Lankan army camp about the assault but was advised that he should not return to Mullaitivu and his national ID details and truck ID details were taken;

   ·    in March 2012 unidentified men came to his house at night looking for him. His wife said that he was away from home driving his truck and would return in five days’ time. The applicant believed that he was targeted for interrogation and “disappearance”;

   ·    the police refused to register his complaint about the unidentified men and he was frightened so he and his wife did not return home for six or seven days;

   ·    in March 2012 his employer went missing;

   ·    after these events the applicant stayed away from his village for one and a half months and after a neighbour told him that the unidentified men had revisited his house he decided to leave Sri Lanka;

   ·    after these events two unidentified men visited the applicant’s wife. They said they knew the applicant was in Australia and they asked for money;

   ·    the applicant fears he will be harmed or mistreated by the Sri Lankan authorities or the unidentified men who will target him because he is Tamil, a failed Tamil asylum seeker or a failed Tamil asylum seeker who is treated as a former LTTE member.

5. The Tribunal accepted that the applicant had been arrested and detained in 2006 but concluded that the Sri Lankan authorities did not believe he was associated with the LTTE because he had no further difficulties from the local authorities in later years. The Tribunal also concluded that the arrest in 2006 had been during the war and that the country situation had changed significantly since then. The Tribunal noted that the applicant had agreed that these arrests had been “a long time back” and his subsequent problems were commercially related. The Tribunal was not satisfied that the applicant would be imputed with a pro-LTTE attitude as result of his arrest in 2006 should he return to Sri Lanka (Tribunal decision at paragraphs [13] and [14]).

6. The Tribunal accepted the applicant’s evidence about the events in Trincomalee as credible but noted that the applicant himself described the incident at the army checkpoint as a “one-off incident” and accepted he would not be at risk of harm as a result of that incident in 2008 if he returned to Sri Lanka. The Tribunal accepted the applicant’s version of this event and accepted that it may have been harassment as a result of the applicant’s Tamil ethnicity but noted that it occurred during the war and there have been significant changes in Sri Lanka since the end of the war in 2009. It concluded that the chance of the applicant being harassed by the Sri Lankan Army in the same way in future was remote (Tribunal decision at paragraphs [16] to [20]).

7. The Tribunal accepted that the applicant was assaulted in 2012 by Sinhalese traders in Mullaitivu while buying fish and that the army later sided with the Sinhalese and warned the applicant not to return to Mullaitivu. However, the Tribunal found that there was no evidence connecting this event to the applicant’s arrest in 2006 and no evidence indicating any suspicion by the army in 2012 of the applicant being an LTTE supporter. The Tribunal found that it was not credible that the Sinhalese traders would take any further interest in the applicant after his return from Mullaitivu to his home area of Udappu on the other side of the island.

8. The Tribunal did not accept that unidentified men had visited the applicant’s home looking for him. After detailed consideration, the Tribunal found the applicant’s narrative about these events to be implausible and inconsistent with earlier statements made to the Minister’s delegate (Tribunal decision at paragraphs [26] to [39]).

9. The Tribunal said that it had “significant doubts” about whether the applicant’s employer had gone missing but was not satisfied that, even if true, this had any connection to the applicant or indicated that the authorities had any adverse interest in the applicant (Tribunal decision paragraph [36]).

10. The Tribunal also referred to a claim made in a written submission that the applicant’s wife’s uncle had been abducted in July 2013. The applicant told the Tribunal that this was “not directly connected to his circumstances” but in a later written submission his representative said this “could have” happened because of the interest of the authorities in the applicant. The Tribunal accepted that the applicant’s wife’s uncle may have been abducted but was not satisfied that there was any evidence that this related to the applicant or that the applicant himself was at risk of abduction should he return to Sri Lanka.

11. The Tribunal considered whether the applicant might be at risk because of imputed links to the LTTE. The Tribunal referred to country information relied on by the applicant about the treatment of Tamils in Sri Lanka. The applicant said that neither he nor any member of his family had any LTTE links. The Tribunal did not accept that the applicant may be at risk. While the Tribunal accepted that the applicant was accused of LTTE links when he was arrested in 2006 it found that there was nothing to suggest any adverse interest by the authorities after that time. The Tribunal found that the incident in 2012 was commercial in nature and the applicant was not accused of LTTE links (Tribunal decision at paragraphs [45] and [46]).

12. The Tribunal considered whether the applicant may be at risk of harm as a failed asylum seeker on return to Sri Lanka. After detailed consideration of country information, including information provided by the applicant, the Tribunal accepted that persons with profiles indicating links to the LTTE may be at risk of harm on returning to Sri Lanka but the Tribunal did not accept that the applicant was such a person (Tribunal decision at paragraphs [47] to [53].

13. The Tribunal gave detailed consideration to whether the applicant would be persecuted or at risk of harm on return to Sri Lanka as a result of his illegal departure by boat. The Tribunal found, after considering Department of Foreign Affairs and Trade (“DFAT”) and United Kingdom country information, that there was no evidence to suggest that the law against unauthorised departure from Sri Lanka (the Immigrants and Emigrants Act 1949) was applied in a discriminatory manner against those who sought asylum outside Sri Lanka or in Australia (Tribunal decision at paragraph [65]). The Tribunal accepted that the applicant would be likely to be questioned under this law on his return and might be subject to a fine but found this would not amount to persecution or a risk of serious harm. The Tribunal did not accept that there is a real chance that the applicant would be prosecuted or detained under the Prevention of Terrorism Act 1979 or that the applicant has an adverse profile with the Sri Lankan authorities (Tribunal decision at paragraphs [58] to [69]).

14. The Tribunal considered whether there is a real chance that on return to Sri Lanka the applicant would be subjected to discrimination amounting to serious harm as a result of his Tamil ethnicity. The Tribunal considered the country information put forward by the applicant and countervailing information from other sources including DFAT. The Tribunal did not accept that Tamils were at risk of serious harm on the basis of their ethnicity alone. It accepted a DFAT report that Tamils who were not members of the LTTE were at low risk of being detained or prosecuted (Tribunal decision at paragraphs [70] to [77]).

15. Having concluded that the applicant did not meet the refugee criterion in section 36(2)(a) of the Migration Act 1958 (Cth) the Tribunal considered the alternative complimentary protection criteria in section 36(2)(aa). It was not satisfied that the applicant was at real risk of serious harm on return to Sri Lanka because, in essence, it was not satisfied that the applicant would be imputed with a pro-LTTE profile because of past events (Tribunal decision at [79] to [87]).

16. The grounds of review set out in the applicant’s application for judicial review are as follows:

    1.   The Tribunal’s decision was affected by an error of law.

    2.   The Tribunal failed to give sufficient weight to country information regarding harassment faced by Tamil men with an imputed political opinion against the government.

    3.   The Tribunal did not correctly apply the country information to my particular claims.

    4.   The Tribunal erred in finding that my claims do not qualify for complimentary protection, specifically; the Tribunal was incorrect in holding that I will not face significant harm on account of my legal departure from Sri Lanka and my status as a failed asylum seeker. The Tribunal was incorrect in holding that the laws against people leaving without authorisation were not discriminatory.

17. The applicant did not file written submissions and I asked him to expand on the grounds of review in oral submissions.

18. In relation to ground 1 the applicant simply took issue with the country information relied on by the Tribunal. He said that the Sri Lankan government had disguised the true state of affairs in Sri Lanka. He said that the country information used by the Tribunal was mistaken and his own submissions were not taken into account.

19. The applicant’s submissions in relation to ground 1 did not disclose a ground of jurisdictional error and did not identify any submission made by him that was not taken into account by the Tribunal. However, I interpreted the applicant’s submissions on ground 1 as an introduction to his submissions in grounds 2, 3 and 4 where he gave more detail of his criticisms of the Tribunal’s decision.

20. In relation to ground 2 the applicant said that the Tribunal failed to give sufficient weight to country information about the harassment of Tamil men. He said that he had told the Tribunal that as a Tamil man he was likely to be harassed at the airport on return by the Sri Lankan authorities. He said, accurately, that the Tribunal considered he would be likely to be released after questioning at the airport but he then asked “What will happen after I am released?” The applicant explained that he was worried that he may be harmed by “unknown people”.

21. In relation to ground 3 the applicant said that the Tribunal did not correctly apply the country information to his particular claims. The applicant said that the Tribunal took the view that there was currently peace in Sri Lanka but he said that he was a “wanted person” and at risk because “disappearances” continued. He asked the court to consider reports from the United Nations about the current situation in Sri Lanka. In response to a question from me about whether the Tribunal had considered this information he confirmed that he had raised this material with the Tribunal and the Tribunal had discussed it with him. This would appear to be a reference to an Office of the United Nations High Commissioner for Refugees (‘UNHCR’) document, Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka, discussed at paragraph [56] of the Tribunal decision. That document referred to a UNHCR finding that 75% of returnees were contacted in their home area by the military or police but not reporting any further harm to those returnees.

22. The applicant also said that “unknown individuals” had searched for him after his departure from Sri Lanka in 2012. This was a reference to a claim rejected by the Tribunal.

23. In relation to ground 4 the applicant submitted that the Tribunal erred in rejecting his claim for complimentary protection on the basis of (1) his illegal departure, (2) his status as a failed asylum seeker and (3) the claimed discriminatory basis of the Sri Lankan migration laws.

24. The applicant did not identify any error other than his disagreement with the Tribunal’s failure to accept that he was at risk of “disappearance” on return to Sri Lanka. In substance, the applicant made the same submission he made in relation to grounds 2 and 3.  

25. The applicant also sought to tender a psychological assessment. It was unclear whether this was done before or after the Tribunal decision but the applicant told me that the assessment had not been submitted to the Tribunal. I was not satisfied that this was relevant to the question of jurisdictional error and I refused to receive it. The applicant also sought to tender further news reports that he said were evidence of continuing human rights abuses in Sri Lanka after 2009. I refused to receive these for the same reason.

26. In my view, the grounds of review do not disclose any jurisdictional error. The Tribunal’s conclusions, including its finding on credibility, appear to have had an evident and intelligible basis and, accordingly, were open to be made. The applicant’s criticism of the weight given to and treatment of country information by the Tribunal does not constitute jurisdictional error: NAHI v Minister for Immigration [2004] FCAFC 10 at [11].

27. I am not satisfied that the applicant has demonstrated jurisdictional error by the Tribunal.

28. The applicant seeks an extension of time. Under section 477 of the Migration Act 1958 the applicant had 35 days within which to make his application. Section 477(2) provides that the court may extend that time if an application has been made in writing and the court is satisfied that it is necessary in the interests of the administration of justice to make the order. The application was about 2 ½ months out of time. Given that the applicant was not legally represented and does not speak English a delay of 2 ½ months is understandable. I will extend the time but dismiss the application with costs. Counsel for the Minister did not make any submission as to the quantum of costs sought. The Federal Circuit Court Rules2001 (Cth), Schedule 1, Part 3, Division 1, item 3 provides a sum of $7,206 (including GST) for a proceeding concluded at a final hearing. I will make an order in that amount.

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

Date: 1 November 2017