BZAEE v Minister for Immigration
[2013] FCCA 1230
•3 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAEE v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1230 |
| Catchwords: MIGRATION – Application for a protection visa – review of a decision of a refugee review tribunal – whether the tribunal considered current country information – whether tribunal’s decision unreasonable, illogical or irrational – impermissible merits review – no reviewable error disclosed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36(2)(aa) |
| Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 SZCDA v MIMIA (2006) 231 ALR 436 VAO v Minister for Immigration & Multicultural Affairs [2002] FCA 161 |
| Applicant: | BZAEE |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 449 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 9 August 2013 |
| Date of Last Submission: | 9 August 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 3 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barataraj |
| Solicitors for the Applicant: | Directly instructed |
| Solicitor for the First Respondent: | Ms O’Connor |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The amended application filed 8 July 2013 be dismissed.
The applicant pay the first respondents costs of and incidental to the application fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 449 of 2013
| BZAEE |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his amended application filed on 8 July, 2013 the applicant seeks an order that the decision of a refugee review tribunal made on 7 May, 2013 be quashed. He seeks an order that his application be reconsidered and determined according to law. Although his application refers to a “recommendation of the Independent Protection Assessment Reviewer”, and an injunction restraining the Minister from relying upon the recommendation of “the Independent Protection Assessment Reviewer” this application does not involve any determination or decision by an Independent Protection Assessment Reviewer. The application is one that seeks relief in respect of a decision of a refugee review tribunal.
The amended application filed on 8 July, 2013 sets out the grounds of the application as follows:
“1. There is a procedural error in that the Second Respondent
(a) erred in law by failure of taking into irrelevant considerations in making the decision.
(b) erred in law by not taking relevant considerations in making the decision.
(c) erred in law by not making a decision contradictory to the preponderance of evidence in support to the Applicant’s claims that makes in unreasonable to the common man”
The first respondent opposes the orders sought by the applicant and seeks orders dismissing the application with costs.
The tribunal’s decision
After setting out the relevant law and the claims made by the applicant, the tribunal made the following findings:
a)The applicant was a 26 year old citizen of Sri Lanka of the Tamil race and Hindu religion;
b)He claimed a well-founded fear of persecution by reason of his race and membership of a particular social group, namely young Tamil males in Sri Lanka;
c)The applicant also claimed to be a person in respect of whom Australia owed protection obligations pursuant to s.36(2)(aa) of the Migration Act 1958 (complimentary protection);
d)The applicant was a Tamil from the Chilaw district in Sri Lanka;
e)His brother was killed in 1999 when the Sri Lankan Army bombed the boat on which the applicant’s brother was fishing;
f)The applicant was never approached for recruitment by the Liberation Tigers of Tamil Eelam;
g)The applicant helped his father with fishing after leaving school;
h)At the time of the intensification of the conflict between the Sri Lankan authorities and the LTTE, the applicant’s family was relocated to Vuvuniya camp;
i)Whilst in the camp the applicant was questioned and may have experienced mistreatment when questioned;
j)The applicant was able to leave Sri Lanka illegally after he was issued with a genuine Sri Lankan passport that his uncle paid money to obtain;
k)The applicant is afraid to return to Sri Lanka;
l)During the applicant’s time in the Vuvuniya camp he did not face serious harm as a real or perceived LTTE supporter;
m)The applicant has not been involved in political activities or any other activities which would attract the adverse interest of the authorities or paramilitary groups in Sri Lanka;
n)The applicant was not at risk of harm by the government authorities, paramilitary groups or the Sinhalese community in Sri Lanka for being a Tamil or a Tamil failed asylum seeker;
o)The applicant did not have the political profile of a person who was at risk of attracting the adverse interest of the authorities in Sri Lanka either as an anti-government activist or a LTTE supporter;
p)The applicant was not a civil society activist, a person viewed as an LTTE sympathiser, a journalist, a political activist, a human rights worker, a person implicated in activities against the government of Sri Lanka or any other group which may attract the adverse interest of the authorities in Sri Lanka;
q)The applicant’s fears that he will be detained and mistreated by the authorities in Sri Lanka as a Tamil failed asylum seeker who left the country illegally to seek asylum are not well-founded;
r)The applicant may be detained and questioned when he returns to Sri Lanka;
s)He may be charged if he is found to have committed an offence; for example leaving the country illegally;
t)The authorities did not demonstrate any further interest in the applicant beyond detaining him in the Vuvuniya camp and his detention in that camp was “an isolated incident at the time of civil war”;
u)The applicant did not face harm in Sri Lanka at the time he departed the country;
v)There is no real chance that the applicant will be subjected to circumstances amounting to persecution in Sri Lanka by the authorities or anyone associated with the government of Sri Lanka for reasons of race, political opinion, his membership of any particular social groups or any other convention related reason;
w)The applicant does not have a well-founded fear of convention related persecution if he returns to Sri Lanka in the reasonably foreseeable future.
The applicant was represented by Counsel on this application. Counsel prepared and delivered written submissions which were filed on or about 10 July, 2013. Counsel made oral submissions at the hearing of this application. Further written submissions were also delivered by the applicant’s Counsel in answer to the first respondents written submissions. The written submissions do not, in terms, address the grounds of review set out in the amended application.
In the written submissions filed on 10 July, 2013 the respondent says “the main ground of the application is that the Tribunal member was in procedural error in not affording the applicant fair and due process in the consideration of the review”. It is then said “the member must take into consideration the factual and personal experience information provided by the applicant together with the country information so as to come to a fair and equitable decision.”
The tribunal’s reasons for decision reveal that indeed it did take into account “the factual and personal experience information provided by the applicant together with the country information” that the tribunal had available to it. The difficulty for the applicant however, is that the tribunal did not accept all of the applicant’s claims. One of the central claims made by him was that whilst he was at the camp at Vuvuniya, he escaped. He claimed that following his escape he received assistance from strangers who lived close by the camp who then took him to a nearby town where he lived for some time. Of those claims the tribunal said this:
“72 … the tribunal does not accept as credible the applicant’s claim that he escaped the camp as claimed, was assisted by complete strangers after his escape, that he is or was suspected of links to the LTTE, or that the Sri Lankan authorities came searching for him at his uncle’s home, although it is prepared to accept that he was questioned whilst in the camp, and may have experienced mistreatment when questioned.
73 In the present matter, the tribunal finds that the applicant fabricated claims relating to his escape from the army camp, and suspected links to the LTTE to enhance his protection visa application claims.”
The tribunal explained in paragraphs 74 and 75 of its reasons for decision why it rejected the applicant’s claims about those matters.
Generally, the applicant’s argument seems to be that given that his claims of mistreatment and potential for mistreatment should he return to Sri Lanka are consistent with the country information that was before the tribunal, the tribunal’s decision that the applicant did not hold a well-founded fear of persecution for a convention reason was an unreasonable, illogical or irrational decision that was not reasonably open on the evidence.
The difficulty with the applicant’s general argument is that the tribunal did not accept uncritically all of the claims he made. As set out above, the tribunal specifically rejected his claim that he was suspected of links to the LTTE. His claim that the Sri Lankan authorities came searching for him at his uncle’s home was also specifically rejected. His claim that he escaped from the camp at Vuvuniya was also rejected. The tribunal concluded that the country information reviewed by it (between paragraphs 49 and 67 of its reasons for decisions) demonstrated that only certain people of Tamil ethnicity had a profile which brought them to the interest or attention of the Sri Lankan authorities. The tribunal concluded that the applicant did not have one of those relevant profiles.
The first ground of review in the amended application
In his amended application, the applicant contends that the tribunal took irrelevant information into account. As seemingly developed in his Counsel’s written and oral submissions, this ground had three aspects to it.
First, the applicant argues that the tribunal member asked him “unreasonable questions which the applicant had no way of answering”. For example, the tribunal asked the applicant why the authorities would have come to his uncle’s house to search for him two and a half years after he had fled; or why he was tortured at the camp and the supposition that if the authorities had any interest in him they would have had ample opportunity to detain him while he was in the camp; or why strangers would put themselves at risk in assisting escapees from the camp; or how he managed to avoid arrest if the authorities had any interest in him? It was suggested that such questions were put to the applicant “just to confuse him” and “place doubts in him”. It was further submitted that the questions were unreasonable because they required the applicant to speculate about what was in the minds of others.
However, as the first respondent argues, such questions were merely an attempt by the tribunal to test the claims that were being made by the applicant. The questions were relevant and the applicant’s answers to those questions, might also have been relevant.
The second aspect to the first ground to the application argued by the applicant seems to be that the tribunal did not take into account “the correct country information that would bring about a fair and reasonable decision.” The applicant criticises the tribunal because the country information to which the tribunal referred is “dated”. The applicant gave a particular example. The tribunal refers to the UNHCR guidelines for the assessment of refugees for 2009. The applicant submits that: “a more updated information UNHCR 2012 which has changed assessment guidelines is available”. The applicant argues: “the latest versions has changed would provide information of the events and situation within the previous twelve months of the publication and would be more relevant to the applicant’s claims.”
I must confess that I do not understand this submission because whilst it is correct that the tribunal referred to the UNHCR eligibility guidelines for assessing the international protection needs for asylum seekers from Sri Lanka published in April, 2009, the tribunal made more extensive and specific reference to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs for Asylum Seekers from Sri Lanka published on 21 December, 2012 (see paragraph 67 of the tribunal’s reasons for decision).
The third aspect to the first ground of the applicant’s grounds of review seems to be that the tribunal’s reliance upon a Department of Foreign Affairs and Trade report was misplaced because the content of that report should be seen as unreliable because: “places where the diplomatic officers can visit for the purpose of collecting evidence are directed by the Sri Lankan Government and they will only allow to places that will not produce any unfavourable evidence against them. The desire to maintain the friendly diplomatic relations would not permit the DFAT to provide very strong critical public reports against the Sri Lankan Government. Using these information to make valid decisions would not be entirely relevant to consideration of the Applicant’s claims.”
As the first respondent’s submission points out, there is no evidence to suggest that the reports prepared by the Department of Foreign Affairs and Trade are compromised as the applicant contends. The tribunal was entitled to rely on those reports.
The second ground of review
The second ground of the application is that the tribunal failed to take into account relevant considerations. The applicant’s submissions suggest that the tribunal failed to take into account the latest UNHCR guidelines issued on 21 December, 2012. But the tribunal’s reasons for decision make it clear that those guidelines were taken into consideration by the tribunal. They were clearly referred to in specific terms in paragraph 67 of the reasons for decision.
In his written submissions, the applicant refers to various items of country information that were addressed by the tribunal. The difficulty asserted by the applicant is that the tribunal made a decision which was contrary to the information contained in those country reports. On its face, that argument appears to be an argument about the merits of the tribunal’s determination. The tribunal was entitled to act upon the information before it and to give that information whatever weight the tribunal thought was appropriate: VAO v Minister for Immigration & Multicultural Affairs [2002] FCA 161. The selection and weight to be given to country information is a matter for the tribunal: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] – [13]; Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [81] – [84].
I accept the first respondent’s submissions that one effect of the applicant’s argument (intended or otherwise) is an allegation of bias on the part of the tribunal, by alleging that the member selected country information that would agree with a “predetermined decision” that the applicant was not a person to whom Australia owed protection obligations. To the extent that the applicant’s case rests upon an allegation of actual or perceived bias, in my view, such a claim is not made out. As the first respondent submits, it would be unusual for bias to be established based on the tribunal’s decision record alone: SZCDA v MIMIA (2006) 231 ALR 436 at [10]. It is not in this case.
The applicant’s written submissions filed on 10 July, 2013 point to a number of “recent RRT decisions” which it is said support the applicant’s claim to a protection visa. It is argued that given that other members in other cases concerning different applicants have reached different conclusions to the tribunal in this particular case, the tribunal’s decision in this particular case must be erroneous. It is argued that: “the process must be consistent and the members must arrive at the same conclusion on events obtained from the country information … the member must not select the information that would agree with a predetermined decision but use the information and decide the outcome”.
The tribunal’s decision carefully considered the country information specifically set out in its reasons for decision. The tribunal member concluded that not all Tamils were of interest to the Sri Lankan authorities. It was only those Tamils that fit certain criteria that were of interest to the authorities. That conclusion was open to the tribunal on the country information before it. The tribunal went on to conclude that the applicant in this case did not fit any of the relevant profiles or exhibit any of the relevant criteria that would mark him as a person which would be of any particular interest to the Sri Lankan authorities. To the extent that the applicant tried to bring himself within those profiles or criteria (for example by claiming that he was suspected of having links to the LTTE) the tribunal made specific findings of fact against the applicant. Each of the decisions of other tribunal members referred to by the applicant in his written submissions turned on their own facts as found by the particular tribunal member in each particular case.
The third ground of review
The third ground of review relied upon by the applicant is “unreasonableness in mode of questioning and in the decision making process”. That purports to be different to the ground of review set out in the amended application. For the reasons I have already articulated, there was neither unreasonableness in the questioning by the tribunal nor any unreasonableness in the decision making process.
The applicant complains that the tribunal member did not correctly apply the complimentary protection provisions (s.36(2)(aa)) of the Act. However, the tribunal turned its mind to the complimentary protection provisions. It determined that certain failed asylum seekers returning to Sri Lanka, according to the country information before the tribunal, attracted the attention of the Sri Lankan authorities. Indeed the tribunal concluded that the information led to the conclusion that most, if not all, failed asylum seekers returning to Sri Lanka would be questioned by the authorities upon their return. However, the tribunal determined that unless a person fell within a particular category of returning failed asylum seekers, such as those persons with links to the LTTE or suspected links to the LTTE or were journalists, political activists, human rights workers or a person implicated in the activities against the government of Sri Lanka, the applicant’s detention and questioning upon the return to the country would not amount to significant harm for the purpose of s36(2)(aa).
In my view there is nothing in the applicant’s submissions that demonstrates that the tribunal’s conclusions about those matters were affected by jurisdictional error.
Conclusion
The applicant does not demonstrate that the tribunal’s decision is affected by jurisdictional error in any respect. The application must be dismissed with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 September 2013
Associate:
Date: 3 September 2013
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