BZAAY v Minister for Immigration

[2013] FCCA 75

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAAY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 75

MIGRATION – Judicial review – independent protection assessment – whether Reviewer considered all grounds of claim to protection advanced by Applicant – all grounds considered.

Migration Act 1958 (Cth), s.476

Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319

Applicant: BZAAY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: BRG 307 of 2011

Judgment of: Judge Jarrett

Hearing dates: 26 & 27 October 2011

Date of Last Submission: 27 October 2011

Delivered at: Brisbane

Delivered on: 19 April 2013

REPRESENTATION

Counsel for the Applicant: Mr Reidy

Solicitors for the Applicant: Holding Redlich

Counsel for the Respondents: Mr Bickford

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application filed on 23 August, 2011 is dismissed.

2. The Applicant pay the First Respondent’s costs of the application fixed in the sum of $6,240.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 307 of 2011

BZAAY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DR RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant has applied for an order that the Respondents show cause why a remedy should not be granted, in the exercise of the Court’s jurisdiction pursuant to s.476 of the Migration Act1958, in respect of a future decision, or other action, by the First Respondent, or an officer under the Act concerning the Applicant following the making of a recommendation by the Second Respondent, an Independent Protection Assessment Reviewer.

2. The Second Respondent made a recommendation to the First Respondent on 29 March, 2011 that the Applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees. The Second Respondent enters a submitting appearance in this matter.

3. The application for review was filed on 20 April, 2011 and an amended application for review was filed on 23 August, 2011.

The Applicant’s arrival in Australia

1. The Applicant arrived by boat at Christmas Island on 18 June, 2010.  After he arrived, he applied for a refugee status assessment. 

2. There were two Convention reasons relied upon by the Applicant in his claim for protection, namely ethnicity or race and imputed political opinion.  He claimed that he was at risk of persecution because he was Tamil, and because there might be imputed to him, support for the Liberation Tigers of Tamil Eelam.

3. The Assessor published his outcome and the reasons for the outcome on 10 September, 2010.  The Assessor recorded that:

   The claimant fears harm from the Sri Lanka authorities because his is an ethnic Tamil and because he was suspected of having links with the LTTE.

   I find that the Convention grounds of ethnicity and imputed political opinion are the essential and significant reasons for the harm feared.

4. The Assessor, however, was not satisfied that the Applicant’s fear of persecution was well-founded.  He found that the Applicant did not have a genuine fear of harm and that there was no real chance of persecution occurring.

5. Before the Second Respondent, the Applicant maintained those grounds of claim.

The Court’s jurisdiction

1. The parties agree upon the basis of this court’s jurisdiction to hear and determine this application.  Both parties agree that the relevant principles to apply in considering the Applicant’s case are those set out by the High Court of Australia in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319.

The grounds in the Application for Review and the Applicant’s contentions

1. The amended application for review contains 9 grounds, but the Applicant indicated in the written submissions filed on his behalf that he does not press grounds 1(c), 2, 3(a), 4(d), 7 and 9 in the amended application.

2. The remaining grounds of review were grouped by the Applicant’s written submissions into three main contentions, namely:

   a)The Second Respondent made an error of law when he treated the Applicant’s claim as based on the Convention ground of imputed political opinion only.  He should have treated the claim as being for the reason of the Applicant’s Tamil race or ethnicity, either solely or as well as (but independently of) his claim based upon imputed political opinion. This error involved failing to take account of a relevant consideration and also determining the application for protection on the basis of irrelevant considerations (grounds 1(a) and (b), 3(b), 4(a)-(c) of the amended application).

   b)The fair hearing rule was not observed because the Second Respondent did not give the Applicant an opportunity to be heard in relation to a series of findings or propositions which turned out to be determinative of the outcome of the review (grounds 5(c) and 6(a)-(c) of the amended application). The Applicant argues that there was no evidence for the relevant findings and a failure to give reasons for those findings (ground 6(b) of the amended application).

   c)There was a failure to give reasons for the determination on matters that were critical to the recommendation, namely:

   i)the attributes that constituted a “political profile” in Sri Lanka (ground 6(a) of the amended application);

   ii)the finding that there was a low incidence of abduction and harassment in Sri Lanka (ground 6(b) of the amended application); and

   iii)that the Applicant would not face a real chance of persecution in the reasonably foreseeable future (ground 6(c) of the amended application).

3. However, at the commencement of the hearing, the Applicant abandoned the grounds set out in paragraph 4 and 5 of his amended application and those grounds referred to in paragraph 4 of his written outline – namely paragraphs 5(c), 6(a) – (c) of his amended application.  Consequently, Counsel for the Applicant indicated that there was only one ground pursued, namely that the Second Respondent did not consider both of the claims advanced by the Applicant, but only one.

The claim that not all Convention reasons were considered

1. The Applicant’s argument is premised on the assertion that the Second Respondent did not appreciate, and did not consider, the Applicant’s claim for protection based upon his Tamil ethnicity or race alone shorn of any other consideration, and specifically, an imputed political opinion arising from his ethnicity.

2. The Applicant argues that the Second Respondent’s findings proceeded from a consideration of a largely irrelevant matter, namely, the Applicant’s imputed political opinion through presumed support of the LTTE.  The Second Respondent, it is argued, failed to consider the real basis of the Applicant’s claim to protection, namely the Applicant’s race or ethnicity as the ground for fear of persecution.

3. The First Respondent conceded in argument that if the Second Respondent failed to address one of the claimed bases for the Applicant’s fear of persecution, with the result that the Minister was not informed about a matter that bore upon the question that the Minister had asked Second Respondent to consider, i.e. whether Australia owed the Applicant protection obligations, the Second Respondent’s recommendation would be affected by a denial of procedural fairness and therefore, jurisdictional error.

4. The Applicant argues that the question that the Second Respondent appears to have asked himself was: Does the Applicant have a well-founded fear of persecution on the ground of imputed political opinion (due to presumed support of the LTTE) when the Sri Lankan government had defeated the LTTE some 18 months or more beforehand? However, the Applicant argues that the real question is this: Does the Applicant have a well-founded fear of persecution because he is a Tamil in Sri Lanka? 

5. The Applicant argues that the Second Respondent did not consider his claim based upon his race or ethnicity.  However, in my view, the Second Respondent’s reasons demonstrate that he did consider both bases of the Applicant’s claims.  He specifically considered and rejected the Applicant’s claim based upon his race or ethnicity and he considered that claim separately to the claim based upon imputed political opinion.

6. As the Applicant’s submissions concede, the Second Respondent considered what might happen to the Applicant upon his return to Sri Lanka.  That was a matter which had some overlap with the Applicant’s claim for protection based upon imputed political opinion, but it was also considered separately.

7. The Second Respondent was clearly aware of the two bases upon which the Applicant pressed his claim.  He set out extensive extracts from the Applicant’s evidence as recorded in the refugee status assessment decision.   He also recorded the submission made prior to the review hearing by the Applicant’s legal and migration representative which articulated the Applicant’s claims on the two bases identified above, but which placed heavier emphasis upon the Applicant’s claims based upon his ethnicity.

8. The Second Respondent set out the evidence given by the Applicant at the hearing and the submissions made on his behalf by the Applicant’s representative at the hearing.  He recorded that he wrote to the Applicant on 9 February, 2011 inviting further submissions in relation to possible findings which he might make from the evidence he had before him and the independent country information upon which he intended to rely.  He recorded the Applicant’s agent’s responses of 2 March, 2011 and 6 March, 2011 and he referred to further documentation by way of six articles in Tamil together, with translations, forwarded by the Applicant’s representative on 8 March, 2011.

9. Certainly it is the case that the Second Respondent considered and made findings about the Applicant’s claims concerning the LTTE’s dealing with his brother and the wider Tamil community (see CB130 paragraphs 4 and 5), but no doubt that was because the Applicant relied upon those matters raised by him in support of his claim based upon imputed political opinion.  The Applicant does not contend that the Second Respondent did not deal adequately with that ground of claim.

10. In his reasons (at CB 131 paragraphs 2 and 3) the Second Respondent considers the claims made by the Applicant based upon his ethnicity or race and the fact that he is a young Tamil male from the north of Sri Lanka.  Whilst the Applicant relied upon his ethnicity as a source of potential persecution should he return to Sri Lanka, he did not rely upon the systematic, long term persecution and discrimination against Tamils in areas such as university education, government employment, housing and in other matters controlled by the government.  He pressed his claim based upon persecution in the form of abduction, detention, torture and possible death at the hands of the controlling Sinhalese government in Sri Lanka.  Nonetheless, the Second Respondent considered the former matters, as well as the latter.  As to the former, he said:

    The reviewer has considered the assertion that Tamils suffer systematic discrimination in university education, government employment and in other matters controlled by the government, and in housing. The reviewer notes that the representative states that the claimant has "not claimed persecution on the basis of denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech", but his representative states that such restrictions and attendant harassment have long term consequences and that as a member of the Tamil community he has suffered systematic discrimination on the basis of his race or ethnic origin. The claim is also made that the changing demographics of the north, i.e. the increasing numbers of Sinhalese moving north, makes it uncertain whether the claimant will be able to compete for economic opportunities and whether he will be able to access essential services. The reviewer has considered this claim. The reviewer accepts that the independent country information does indicate that there is indeed widespread discrimination against Tamils and that there are indeed increasing numbers of Sinhalese moving to the Tamil areas of the north. However, the reviewer finds that none of the independent evidence cited above indicates there is such a level of systematic discrimination that, in the reasonably foreseeable future, there is a real chance that the claimant would himself suffer discrimination employment, housing or other essential services to a degree as would constitute 'persecution in the particular circumstances of his case.

11. As to the latter, Second Respondent found:

    The reviewer accepts that the fact that he has been away may make local people suspicious of him, and that he fears abduction from government or pro-government forces. However, the Independent country information provided to the claimant indicates that the post-war situation is such that human rights abuses are declining and that the majority of people are beginning to live relatively normal, albeit post-conflict, lives. In making this finding, the reviewer has considered the country information provided by the claimant and accepts that there are indeed incidents of harassment of Tamils and people suspected of LTTE support.  However, the reviewer, taking into· consideration the lack of political profile of the claimant as discussed above, finds that the incidence of abduction and harassment not to be at a level such that there would be a real chance the claimant would suffer serious harm in the foreseeable future for a Convention reason if he returned to live in Sri Lanka.

12. It was argued that this finding was a finding made in relation to the Applicant’s claim based upon an imputed political opinion (support for the LTTE).  However, on a fair reading, the Second Respondent is dealing with the Applicant’s claim that he will persecuted  (by being abducted, tortured, or killed) simply because he is a Tamil.  The reference to the harassment of Tamils and people being suspected of LTTE support identifies the two grounds of claim made by the Applicant.  The following reference to the Applicant lacking a political profile “as discussed above” excludes the ground of claim based upon imputed political opinion from the finding that follows. 

13. Put another way perhaps, the Second Respondent discounted that the Applicant was likely to be seen as an LTTE supporter, as he did by the use of the words “taking into consideration the lack of political profile of the claimant as discussed above”. Thereafter, the only claim left for consideration was the Applicant’s claim based upon his Tamil ethnicity.  It was in respect that the Second Respondent found “that the incidence of abduction and harassment not to be at a level such that there would be a real chance the claimant would suffer serious harm in the foreseeable future for a Convention reason if he returned to live in Sri Lanka”.

14. At CB131, Second Respondent concludes:

    In conclusion, the Reviewer is not satisfied that if the Claimant returns to Sri Lanka he would, in the reasonably foreseeable future, face a real chance of persecution by reason of his ethnicity or political opinion (real or imputed). The Reviewer is not satisfied that if he returns to Sri Lanka he will face a real chance of persecution for reason of membership of a particular social group or for any other Convention reason.

15. The Second Respondent’s conclusion was that he was not satisfied that the Applicant would face a real chance of persecution by reason of his ethnicity or real or imputed political opinion or membership of a social group or on account of any other Convention ground.  He clearly considered and made findings in relation to both grounds advanced by the Applicant.

16. The application must be dismissed with costs.

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

Date:  19 April 2013