BWR16 v Minister for Immigration

[2020] FCCA 481

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWR16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 481

Catchwords:
MIGRATION – Application dismissed – unrepresented applicant – no failure to consider claims separately or cumulatively – no ongoing profile as a supporter of the LTTE – lack of evidence to support claim.

Legislation:

Federal Court Rules 2011 (Cth), r.36.03

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476(1)

Applicant: BWR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1545 of 2016

Judgment of: Judge McNab

Hearing date: 13 February 2020

Date of Last Submission: 13 February 2020

Delivered at: Melbourne

Delivered on: 13 February 2020

REPRESENTATION

Applicant in person

Counsel for the First Respondent: Ms Elliott

Solicitor for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed 20 July 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

3. The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4. The time for filing any Notice of Appeal under Rule 36.03 of the Federal Court Rules 2011 (Cth) be extended to the date 28 days after publication of the settled written Reasons for Judgment, which were delivered orally.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1545 of 2016

BWR16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(REVISED FROM DELIVERED EX-TEMPORE REASONS)

1. This matter concerns an Application filed 20 July 2016, by which the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 30 June 2016.

2. The Tribunal affirmed a decision of the delegate of the First Respondent (‘the Minister’) to refuse to grant the Applicant a Protection (subclass 866) visa.

3. This proceeding is brought pursuant to section 476(1) of the Migration Act 1958 (Cth).

4. The Grounds of the Application are as follows:

   1 The Tribunal fell into jurisdictional error when it has not assessed the applicant’s profile as an “aid worker for displaced Tamils”. (at paragraph 55 of its decision)

   2 The Tribunal’s finding that the applicant has not demonstrated any desire to continue working in with NGOs or in human rights organisation was not supported by evidence.

   3 The Tribunal has not assessed the applicant’s claims of being a Tamil with a perceived political opinion supporting the LTTE and worked for the displaced Tamils and other NGOs and human rights organisations portrayed as traitors by the Sri Lankan state.

   (errors in original)

5. At the hearing before the Court this day, the Applicant appeared unrepresented. He raised that he had evidence, but had not been able to provide that evidence before the Tribunal, that in 2012 he was arrested and then subsequently released through the Courts. He also mentioned that he did not raise that claim before the Tribunal because he said that he had been told that if he raised a claim of that kind, it would not assist his case. The Applicant also raised that the Tribunal seemed to be only interested in asking about his assets, and that it was plain that it was the Tribunal’s intention to reject his claim.

6. The Court notes that the Tribunal process was the subject of two hearings. The Applicant was represented throughout by an experienced migration agent and submitted two detailed written submissions in support of his application before the Tribunal.

7. The Applicant has not put any evidence before the Court in order to establish the claim that the Tribunal was actually biased or gave the impression of being biased.

Background

1. The Applicant’s claims are accurately summarised in the background provided in the written submissions filed by the Minister on 18 March 2019:

   3. The applicant, a citizen of Sri Lanka, arrived in Australia on 19 July 2012 as an unauthorised maritime arrival. On 20 November 2012, the applicant applied for a protection visa.

   4 The applicant’s claims to fear harm were contained in his statutory declaration accompanying his application for the Visa delegate interview, submissions to the Tribunal dated 14 January 2014 and 24 June 2016, and oral evidence in respect of the 2014 and 2016 Tribunal hearings.

   5. The applicant claims to fear harm on account of: his Tamil ethnicity; his imputed 5support for the Liberation Tigers of Tamil Eelam (LTTE); his past involvement with Tamil refugees and human rights organisation (member of a particular social group characterised as “aid workers for displaced Tamil refugees”); and, his illegal departure from Sri Lanka to seek asylum (member of the particular social group “failed asylum seeker from a western country”).

   6. On 5 August 2013, the delegate refused to grant the Visa. On 14 6August 2013, the applicant applied to Refugee Review Tribunal (as it was then known) for review of the delegate’s decision.

   7. The applicant attended a hearing on 1 October 2014 to give evidence and present 7arguments. Before the Tribunal made its decision, the Tribunal was reconstituted. The applicant attended a second hearing before the Tribunal on 22 June 2016.

   (citations omitted)

The Tribunal’s decision

1. Similarly, the decision of the Tribunal is accurately and neutrally described in the Minister’s Outline of Submissions:

   8. On 30 June 2016, the Tribunal affirmed the delegate’s decision to refuse to grant the visa.

   9. The Tribunal noted that the applicant’s evidence regarding past events was given in a consistent manner over time (at [15], [17], [34] and [43]). The Tribunal accepted that:

   9.1 the applicant and his wife worked in a voluntary capacity with non-government organisations (NGOs) for two months in 2006 (at [17]),

   9.2 the applicant was questioned by the authorities on three occasions in 2006 (at [19], [20] and [24]), twice in 2008, once in 2009 (at [31]), and once in 2012 (at [43]), and

   9.3 the applicant would be subject to processes upon return to Sri Lanka (which it set out with reference to country information at [61]-[63]) and would be suspected by the authorities to have sought asylum in Australia (at [59]).

   10. However, the Tribunal made the following findings in regards to the above:

   10.1 The Tribunal found that the applicant had not, since 2006, demonstrated any desire to continue working with NGOs or human rights organisations, that he had no desire or intention to do so in the future, and that he did not have any ongoing adverse profile in connection with his past work (at [55] and [57]). Further, whilst accepting that persons with particular profiles linked to human rights advocacy and organisation may give rise to a real chance of harm in Sri Lanka (at [56]), the Tribunal found the applicant’s involvement in NGOs was not of a nature so as to place him at risk of harm or give rise to an adverse profile with the authorities (at [57]).

   10.2 On each occasion of being questioned by authorities, the applicant was released once his identity had been confirmed, which indicated that he was not under any ongoing suspicion or had any adverse profile with the authorities (at [19], [20], [24], [28], [29]-[31]). Whilst accepting that the applicant had a subjective fear of harm on the basis of his Tamil ethnicity (at [32]), having considered the applicant’s individual circumstances and reliable country information, the Tribunal was not satisfied that the applicant faced a real chance of serious harm or real risk of significant harm on the basis of his Tamil ethnicity (at [46]-[54]).

   10.3 The treatment faced by Sri Lankan returnees who departed Sri Lanka illegally did not give rise to a real chance of serious harm in the reasonably foreseeable future, nor did those processes involve differential treatment for any reason the applicant claimed, or for any Convention reason (at [64]). Further, the Tribunal found that those processes did not reach the requisite level of ‘significant harm’ for the purposes of the commentary protection criterion (at [65]-[68]).

   10.4 The Tribunal noted that on the applicant’s own evidence, he had not been questioned or accused of any LTTE links since May 2009 (at [81]), and that his past interactions with Sri Lankan authorities did not give him any ongoing adverse profile linked to the LTTE (at [82]). On the evidence before, the Tribunal was not satisfied that the applicant had any links to the LTTE, and was satisfied that he would not be imputed with a political opinion in support of the LTTE (at [78] and [82]).

   11. For the above reasons, the Tribunal found that the applicant did not satisfy the criteria 11in ss 36(2)(a) or 36(2)(aa) of the Act.

   (citations omitted)

Consideration

1. By Ground 1 the Applicant asserts that the Tribunal fell into error as it has not assessed his profile as an ‘aid worker for displaced Tamils’. In fact, the Tribunal did consider that claim at [55] of the Tribunal’s decision record.

2. At [17]-[20] of the decision record, the Tribunal sets out in detail the claim made by the Applicant. The Tribunal at [17] noted that it accepted that the Applicant and his wife worked in a voluntary capacity with aid organisations in or before 2006, and noted that the Applicant’s role was generally to assist with building works while his wife’s role was to assist with the distribution of aid items.

3. The Tribunal, at [55], considered this work with the NGOs conducted by the Applicant and his wife. Here the Tribunal noted that the Applicant’s work with the aid organisation was for about two months in 2006, and concluded that it did not accept that the past work gave the Applicant any ongoing profile as a supporter of the Liberation Tigers of Tamil Elam (‘LTTE’). At [57] of the decision the Tribunal made a finding in relation to that. Ground 1 is not made out.

4. Ground 2 deals with the Tribunal’s finding that the Applicant has not demonstrated any desire to continue working in or with NGOs or human rights organisations. This was not supported by evidence. As noted earlier, the Tribunal at [19] and [55] considered the Applicant’s work with the Tamil refugees and NGOs and found at [55] that:

   […] the Applicant has not, in his time in Australia since 2012 or at any time since 2006, nor in evidence overall, demonstrated any desire to continue working with NGOs or human rights organisations.

5. This is a finding of fact which was open to the Tribunal. For me to descend into an analysis of the facts in a way sought by the Applicant would be to engage in merits review, which is impermissible.

6. Ground 3 asserts that the Tribunal did not assess the Applicant’s claims cumulatively in relation to his Tamil ethnicity, his perceived LTTE support and his involvement with aid organisations. This Ground also fails on the basis that the Tribunal decision demonstrates in a clear way that the Tribunal did consider those claims separately and also cumulatively.

7. The decision record shows that the question of Tamil ethnicity was considered at [46]-[54] of the decision. The issue of the Applicant’s involvement with aid organisations was considered at [55]-[57]. The issue of Tamil ethnicity, imputed political opinions and prior experiences with Sri Lankan authorities was considered at [79]-[81]. All these matters were considered cumulatively by the Tribunal at [82]-[83] of the decision.

8. I tried to explain to the Applicant that it is not my role to rehear the evidence that was before the Tribunal. It is my role to consider whether the Tribunal has failed in its obligations to give consideration to the claims. For these reasons, the Application must be dismissed.

9. I note that this matter was called on at 2.25pm today, with the matter having been listed for hearing at 2.15pm. The Applicant was not in attendance. The Court made Orders at the time that the Application be dismissed by reason of the non-appearance of the Applicant. Subsequently, the Applicant did appear at shortly after 2.30pm and explained that he had gone to a different floor of the Court complex. The Order that the Court pronounced at about 2.25pm was set aside by consent.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  5 March 2020