BZAFM v Minister for Immigration

[2014] FCCA 1961

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1961

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – where tribunal determined that the applicant did not have a well-founded fear of persecution for convention reason – where tribunal did not accept claims made by the applicant – no jurisdictional error revealed.

Legislation:

Migration Act 1958, s.36(2)(a)

Cases cited:
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: BZAFM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 747 of 2013

Judgment of: Judge Jarrett

Hearing date: 5 August 2014

Date of Last Submission: 5 August 2014

Delivered at: Brisbane

Delivered on: 11 September 2014

REPRESENTATION

The Applicant appeared on his own behalf

Solicitor for the first respondent: Ms Kelly

Solicitors for the first respondent: Clayton Utz

The second respondent entered a submitting appearance

ORDERS

1. The application for review filed on 13 December 2013 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 747 of 2013

BZAFM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his amended application filed on 13 December, 2013 the applicant seeks judicial review of a decision of a refugee review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) visa.

2. The first respondent seeks orders dismissing the application with costs.

3. Despite making directions for him to do so, the applicant has filed no written submissions in support of his application. The first respondent has filed written submissions for the Court’s assistance. 

Background

1. The applicant is a Tamil from Sri Lanka who applied to the first respondent’s Department for a protection visa on 20 July, 2012.

2. The delegate refused to grant the visa on 24 August, 2012 and the applicant applied to a tribunal for review of that decision.

3. The applicant appeared before the tribunal on 12 November, 2012; 12 December, 2012 and 22 May 2013.  He gave evidence and presented arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

4. In his application before the first respondent’s delegate and in the tribunal, the applicant claimed to have a well-founded fear of persecution for the following reasons:

   a)he is a Tamil male from the east of Sri Lanka;

   b)he was a victim of abuse by the Sri Lankan army because of the perception that Tamils in his area were affiliated with the Liberation Tigers of Tamil Eelam;

   c)his association with his neighbour, a Tamil woman named Vino, whose husband was allegedly an LTTE supporter ; and

   d)if he was returned to Sri Lanka, his illegal departure from the country and status as a failed asylum seeker would increase his risk of harm.

5. The applicant based many of his claims upon his alleged experiences following a person called Vino and her son moving to live next door to the applicant in his local village.  The tribunal summarised the claims as follows:

   199.  The applicant effectively indicated in his evidence that he had lived for a number of years without any problems until early 2011. The applicant gave evidence to the tribunal that he had lived very happily with his family before 2011. Only from 2011 did he have a problem. He told the tribunal that all the problems came because of Vino. He has claimed that Vino, a Tamil woman, became a neighbour in late 2010. He has claimed that, in early 2011, Special Taskforce (STF) officers came and were looking for the husband of his neighbour, Vino. The applicant has made claims about experiencing a range of difficulties after January 2011 when the matter involving Vino and her husband arose. For instance, he made claims about people coming to his house, about being harassed while driving his taxi, about being asked to buy things or work for the police or army, or being asked to give them fish, and about being physically harmed. He claimed that there had been an incident about 15 days before he left Sri Lanka in March 2012 and that he went into hiding soon after that. The applicant claimed in his written statement to the Department that his wife was no longer staying at home and that there had been problems at his house and problems for Vino. He claimed that people had been looking for him since his departure from Sri Lanka.

6. The tribunal rejected those claims on the basis that it did not find them credible.  The tribunal said:

   200.  For reasons set out below, the tribunal finds to be lacking in credibility the applicant’s claims about the matter involving Vino and her husband and the difficulties experienced by the applicant and his family from 2011 onwards.

7. Thereafter, the tribunal set out, its comprehensive consideration of the applicant’s claims, and catalogued the reasons why it considered that it could not find that a great many of them were credible.  That is not to say that the tribunal did not accept some of the matters put before it – it plainly did so, but that it did underscores the care with which the tribunal approached its task of assessing the merits of the applicant’s claims.  I will not repeat what the tribunal said generally about the applicant’s credibility in its lengthy reasons (see for example paragraphs 201 – 218 of the tribunal’s reasons).

8. With respect to being of Tamil race, the tribunal said:

   219.  The tribunal has had regard to information indicating that there does continue to be some level of discrimination against people of Tamil ethnicity. It notes reports, for instance, of “Sinhalisation”. However, the applicant’s evidence is that he lived in a house in Karuvappamkerni. He built this house after the tsunami with the help of the Red Cross. His evidence indicates that his wife and children are living in that house now. The applicant has given evidence that he worked in Sri Lanka as a fisherman and a taxi driver. The tribunal finds that the applicant did not suffer such discrimination in relation to matters such as housing and employment as to amount to serious harm. The tribunal finds that, after returning from the UAE in 2004, the applicant lived in Sri Lanka with his family without suffering serious harm for reasons connected with his ethnicity or for any other Convention reason.

   …

   221.  … The tribunal has had careful regard to all the information, including the information from the US Department of State referring to harassment reported by Tamils. However, having regard to all the information including the most recent guidance from the UNHCR, the tribunal is not satisfied that the applicant would face a real chance of persecution in Sri Lanka for reason of his membership of a particular social group constituted by young/middle aged Tamil men or young/middle aged Tamil males from the east or male Tamils from the east of Sri Lanka.

9. The tribunal accepted that certain incidents occurred as described by the applicant, including that the applicant was rounded up when he was very young and on one occasion forced to undertake labour for a day because he failed to register his travel.  However, the tribunal held that this did not constitute serious harm.   In any event, the incident was many years in the past and not indicative of any particular interest in the applicant.

10. The applicant claimed to have lived in an area of high LTTE activity prior to his departure for the UAE in 2002. The tribunal noted that it was the applicant’s own evidence that the situation changed markedly after the cessation of armed conflict and found he lived in Sri Lanka from 2004 onwards without suffering serious harm from the authorities.

11. The tribunal did not accept the applicant’s claims that he is at risk of persecution because certain persons would, upon his return to Sri Lanka, suspect him of being involved with the LTTE political party.  The tribunal said:

    222.  The tribunal notes that submissions have been made in relation to Tamils who are viewed as LTTE sympathisers. In this regard, reference has been made to some earlier decisions by the Refugee Review tribunal (1212971 and 1213764). For instance, the submissions cited an extract from the latter decision stating that reports from Amnesty International and Freedom House referred to widespread detention of Tamils on suspicion of being LTTE sympathisers. However, the tribunal does not accept that the applicant was, prior to his departure from Sri Lanka, suspected of having LTTE links as claimed. It does not accept that there is any real chance that the Sri Lankan authorities would suspect him of such links in the reasonably foreseeable future.

12. The findings made by the tribunal about those matters were open on the evidence before it.

13. The applicant said that his fear of persecution in this regard arose from his relationship with his neighbour, Vino, who the applicant claims the army targeted because of her husband’s involvement in the LTTE. The applicant described incidents of harassment by army officers on account of suspicion that he was harbouring Vino’s husband.

14. As I have set out above, the tribunal found inconsistencies with the applicant’s evidence which led it to discount much of the applicant’s claims.  The tribunal did not accept that Vino’s husband had links to the LTTE or that Vino and the applicant came to the attention of the authorities as a result of suspected ties to the LTTE.

15. The tribunal accepted that the applicant, after expulsion from Australia, may be questioned upon his return to Sri Lanka and possibly detained.  It also accepted that some information demonstrated that returnees might come to harm if they were actually affiliated, or suspected of having an affiliation with, the LTTE.

16. However, the tribunal was not satisfied that, on the available evidence, the applicant would be suspected of LTTE links simply because he is a Tamil male who has been in Australia and sought asylum:

    226.  The tribunal has considered carefully submissions about matters such as stigma attached to returnees. It has been submitted that returnees would be viewed with suspicion and seen as traitors, and that they were characterised as LTTE mouthpieces and supporters. It has been submitted that failed Tamil asylum seekers faced a risk on arrival and also at places away from the airport such as checkpoints. As noted above, organisations such as Freedom from Torture and Human Rights Watch have referred to a risk to those who have been affiliated with or are considered supporters of the LTTE, or with an actual or perceived association with the LTTE. The tribunal accepts that those with an actual or perceived association with the LTTE face a risk of harm in Sri Lanka and that this risk also applies to people with such a profile who have returned to Sri Lanka from abroad. It accepts that the risk to such people can occur when they are at the airport or in other places. The tribunal has had regard to material that has been submitted. However, having regard to all of the information on the treatment of returnees, the tribunal is not satisfied that returnees generally are regarded as having links with the LTTE or being opposed to the government simply because they have been in Australia.

    227.  The tribunal considers reliable the evidence from DFAT and others that returned failed asylum seekers are routinely questioned at the airport. However, it is not satisfied that this amounts to serious harm. The tribunal notes that the UNHCR has indicated that a substantial proportion of refugee returnees are contacted at their homes in the village of destination by either a military or police officer for further “registration” and that some returnees are visited at home again for subsequent interviews (UNHCR 2012, cited above). However, the tribunal is not satisfied that such treatment by the authorities amounts to serious harm.

17. The tribunal was not satisfied that, if the applicant were to return to Sri Lanka, he would be persecuted for membership of a particular social group as a failed Tamil asylum seeker.

18. The tribunal concluded that there is no real chance that the applicant would be subjected to persecution for reasons of ethnicity, religion, membership of a particular social group or any other Convention related reason if he were to return to Sri Lanka and was not therefore satisfied that the applicant met the criterion set out in s36(2)(a) of the Migration Act 1958.  The tribunal also considered the complementary protection provisions under the Act.  The tribunal found that there is no real risk that the applicant would be subjected to torture or other forms of significant harm in Sri Lanka.

The Grounds of Review

1. The applicant has three grounds of review in his application.

Ground 1(a)

1. The ground is expressed in the following terms:

   1) The tribunal erred in law in not taking relevant evidence into consideration in making the decision.

   Particulars:

   a) The Applicant had provided oral and written evidence that he was big suspected as an associate of a person who has been accused as an LTTE member or supporter and constantly harassed.

2. This is clearly a reference to the applicant’s neighbour, Vino and her husband.

3. I accept the first respondent’s submission that while this ground is expressed as an allegation of a failure to take into account relevant evidence, it is really a statement of disagreement with the tribunal’s finding that the applicant’s evidence in relation to this claim lacked credibility.

4. As the first respondent points out, to the extent the tribunal’s findings were founded on adverse credibility findings, provided those findings were open on the material before the tribunal, such findings cannot be said to give rise to jurisdictional error on the tribunal’s part.

5. This Court’s role is to review the tribunal’s decision for jurisdictional error.  The tribunal’s findings of fact are not open to review as long as they are reasonably open to it on the evidence before it.  Findings of credibility are findings of fact par excellence: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407. The mere fact that other minds may have arrived at a conclusion other than that reached by the tribunal, is not enough to establish jurisdictional error.

6. The tribunal considered, very carefully in my opinion, the claims made by the applicant that his neighbour and her husband bought unwarranted attention on the applicant.  It gave careful consideration to his claim that he was suspected of being an LTTE supporter by reason of his association with his neighbour.  The tribunal found that in relevant respects, the applicant’s claims lacked credibility.  The tribunal explained why it came to those conclusions.

7. I accept the first respondent’s submissions that this ground of review amounts to a request that the Court conduct a merits review of the decision.  That is impermissible.

Ground 1(b)

1. This ground is expressed in the following terms:

   1) The tribunal erred in law in not taking relevant evidence into consideration in making the decision.

   Particulars:

   …

   b) The tribunal failed to note or apply the Country information produced that indicated that persons of Tamil ethnicity and those suspected or perceived to be associated with LITE were being persecuted.

2. The applicant alleges in support of this ground that the tribunal had before it relevant country information that would allow it to conclude that there was a real risk that the applicant would be arrested on his return to Sri Lanka, but that it failed to “apply” this information. This statement appears to be an allegation that the tribunal could have reached a different conclusion on the information before it.

3. However, the tribunal’s reasons demonstrate that the tribunal had regard to a wide range of relevant country information.  The tribunal accepted that there was information that indicated that persons of Tamil ethnicity were being persecuted, but only in certain circumstances.  The tribunal summarised the position at paragraph 221 of its reasons as follows:

   221. As indicated in the country information set out above, the independent information indicates that the armed conflict in Sri Lanka came to an end in 2009. The UNHCR stated in 2010 that there was no longer a need for a presumption of eligibility for Tamils originating from the north. DFAT has also observed in recent advice that the security situation in the north and east is greatly improved since the end of the conflict, although incidents of violence can occur. The Tribunal notes the submissions referring to UNHCR guidance of 2010 stating that, according to some reports, young ethnic Tamil men from the north and the east may be disproportionately affected by security measures on account of their suspected affiliation with the LTTE. However, in the same report, the UNHCR stated that, in light of the improved human rights and security situation in Sri Lanka, there was no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity. The UNHCR identified amongst its potential risk profiles persons suspected of having links with the LTTE. As the Tribunal also put to the applicant at the hearing, in its 2012 guidance the UNHCR stated that all persons living in areas of the north and east that had been under LTTE control, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration. The UNHCR stated that originating from an area that was previously under LTTE control did not in itself result in a need for international protection under the Convention. However, it noted that previous (real or perceived) links going beyond prior residency within an area controlled by the LTTE continued to expose individuals to treatment which might give rise to a need for international refugee protection, depending on the specifics of the individual case (UNHCR 2012, cited above, p.27). The Tribunal has had careful regard to all the information, including the information from the US Department of State referring to harassment reported by Tamils. However, having regard to all the information including the most recent guidance from the UNHCR, the Tribunal is not satisfied that the applicant would face a real chance of persecution in Sri Lanka for reason of his membership of a particular social group constituted by young/middle aged Tamil men or young/middle aged Tamil males from the east or male Tamils from the east of Sri Lanka.

   (my emphasis)

4. In my view, the tribunal did note the country information that indicated that persons of Tamil ethnicity and those suspected or perceived to be associated with LTTE were being persecuted.  But because the tribunal had rejected the applicant’s claims that he had been suspected of links with the LTTE, or would be so suspected in the future, it was not satisfied that the applicant would face a real chance of persecution in Sri Lanka for reasons connected with his ethnicity.

5. The tribunal put to the applicant various items of information available to the tribunal for his comment.  The applicant was invited to, and did, make submissions to the tribunal about those matters.  I accept the first respondent’s submissions that the tribunal’s reasons demonstrate that it conducted a detailed examination of independent country information in making its decision.

6. Moreover, in the context of its consideration of the complementary protection provision of the Act, the tribunal said:

   244.  The Tribunal accepts on the evidence before it that a suspicion of LTTE links may give rise to harsh treatment or torture either on return or at some later time. However, the Tribunal does not accept on the available evidence that the applicant would be suspected of LTTE links simply because he is a Tamil male from the east who left Sri Lanka illegally and sought asylum in Australia. It is not satisfied on the evidence before it that he has ever come to the adverse attention of the Sri Lankan authorities in the past. Having carefully weighed all the country information and having regard to the applicant’s particular circumstances, the Tribunal is not satisfied that it has substantial grounds for believing that, if the applicant were removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. In making this finding, the Tribunal has had regard to submissions that have been made in relation to returnees and problems faced by returnees in relation to matters such as accommodation, employment and documentation. However, as noted above, the applicant has a house in Sri Lanka and has worked in the past as a fisherman and taxi driver. He has been able to obtain official documentation in the past. The Tribunal has considered independent information in relation to returnees and illegal departure, as set out above.

1. The applicant’s real complaint is about the weight given by the tribunal to various parts of the country information that was before the tribunal.  As the first respondent submits, it is impermissible for a Court to review the merits of the tribunal’s decision about those matters. Matters of weight are matters for the tribunal only.  The tribunal was entitled to form its own views as to the accuracy and weight of country information.  Even if it may be argued that there was country information available which was contrary to that relied on by the tribunal, the question of the accuracy and relevance of country information is one for the tribunal as part of its fact-finding function.

2. No jurisdictional error is revealed by this ground.

Ground 1 (c)

1. This ground is expressed in the following terms:

   1) The tribunal erred in law in not taking relevant evidence into consideration in making the decision.

   Particulars:

   …

   c) That failed asylum seekers have been rearrested detained and tortured by the SL authorities.

2. The tribunal had before it evidence that failed asylum seekers have been rearrested, detained and tortured by the Sri Lankan authorities.  In paragraphs 224 and 225, the tribunal traversed that material and other material at length.  I will not set out those paragraphs.  However, those paragraphs reveal that the tribunal actively weighed the competing evidence that it had before it.  It accepted that the applicant might be arrested and detained upon his return to Sri Lanka, but that his arrest and detention would be short term and not amount to serious harm.  Further, given the absence of any links by the applicant to the LTTE, it was not likely that if he was arrested and detained, he would be tortured.  In paragraphs 226 and 227 (set out above) the tribunal expressed its conclusion that it was not satisfied that the applicant would suffer serious harm by reason of his status as a failed asylum seeker.

3. No jurisdictional error is revealed by this ground.

Ground 2

1. This ground is expressed in the following terms:

   2) The tribunal erred in law in applying or using only the limited information that had opposing views to make the decisions.

   Particulars:

   a) It is accepted that there are information obtained through diplomatic sources that do not share the independent and other Government authority observation. The Applicant claims that such information obtained through the auspices of the Sri Lankan Government tend to be distorted on the basis that observers are only take to places that provided information in support of the Sri Lankan Government and for the convenience of the Minister to refuse the application.

2. I accept that first respondent’s submission that this ground appears to repeat the complaint in ground l(b).  It purports to cavil with the tribunal’s assessment of the material before it and the weight that might be given to that material. 

3. No jurisdictional error is revealed by this ground.

Ground 3

1. This ground is expressed in the following terms:

   3) The tribunal did not take adequate consideration in the application of the complementary protection provision in the Migration Act. The tribunal was unreasonable or illogical in making the adverse conclusion.

   a) The Applicant has provided numerous incidents of country information that supported his application which showed that Sri Lanka does persecute persons of Tamil ethnicity, those accused or perceived to be associated with the former LTTE and failed deported asylum seekers. The tribunal had not applied these evidence in making the decision.

2. Again, this ground attempts to engage in debate about the merits of the tribunal’s decision and the weight that it gave to the evidence before it.

3. To the extent that the applicant complains that the tribunal’s decision is unreasonable, illogical or irrational he must demonstrate that the tribunal’s decision was so unreasonable that no other reasonable decision maker could have come to that decision.  In my view, the applicant cannot demonstrate that in this case.  The decision that the tribunal arrived at was one which was open on the material before it.  It is not to the point that others might have made a different decision to that made by the tribunal in this case.

4. The tribunal clearly considered the applicant’s claims as they related to the complementary protection provisions. It did so in paragraphs 238 – 246 of its reasons.  Having regard to the findings that the tribunal had earlier made, the decision might be said to be reasonable, rational and logical.

5. No jurisdictional error is revealed by this ground.

Ground 4

4) The tribunal failed to apply Sections 354, 420 (1) and 2(b), S 422(3) of the Migration Act in failing to act in a way that is just and fair or act according to substantial justice and the merits of the case

1. The ground of review has no substance.  The tribunal engaged with the applicant’s claims.  It assessed his evidence and submissions and measured those matters against independent information.  It made findings of fact and then applied those findings to the legislative framework that applied to the applicant’s claim to a protection visa.  It invited the applicant to a hearing, (which took place over three separate days) and considered at least two separate post hearing submissions from the applicant.

Conclusion

1. I accept the first respondent’s submission that the applicant has failed to demonstrate that the tribunal’s decision was affected by jurisdictional error.  The amended application for review filed on 13 December 2013 should be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       11 September 2014