BZAGL and Minister for Immigration and Anor

[2016] FCCA 1235

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAGL & MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1235

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – amended grounds of application asserting jurisdictional error in generalised terms – whether Tribunal took irrelevant matters into consideration and/or failed to have regard to relevant matters – whether Tribunal made mistakes as to fact – criticisms of Tribunals decision not made out – no jurisdictional error shown – application dismissed.

Legislation:

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

Cases cited:
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) CLR 415
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39

Applicant: BZAGL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 184 of 2014

Judgment of: Judge Demack

Hearing date: 5 November 2014

Date of Last Submission: 5 November 2014

Delivered at: Rockhampton

Delivered on: 20 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Markwell

Solicitors for the Applicant: William John Markwell

Counsel for the First Respondent: Mr Lucey

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. That the application filed on 23 September 2014 be dismissed.

2. That the applicant pay the first respondent’s costs of the proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 184 of 2014

BZAGL

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By an amended application filed on 23 September 2014 the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 31 January 2014. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection class XA visa.

2. The grounds of application are not perhaps entirely easy to construe and, as the first respondent in my view correctly submits, are arguably inconsistent with the written outline of argument filed on 22 October 2014. In summary, however, it is sufficient to say that the gravamen of the complaints made about the Tribunal’s decision essentially involve assertions that the Tribunal either took into account a number of irrelevant considerations or failed to take into account relevant considerations and made a number of mistakes as to fact such as to ground jurisdictional error. These sort of rolled-up grounds inevitably involve a detailed consideration of what the material was that was before the Tribunal and what the Tribunal made of it.

3. For the reasons that follow, I do not think that the Tribunal fell into jurisdictional error, and it follows that the application will be dismissed with costs.

The materials before the Tribunal

1. The application for a protection visa and accompanying documents are CB239 - 326. The applicant’s claims are set out in a statement at CB292 - 297, prepared by the applicant with the assistance of a migration agent and interpreter. The applicant deposed at paragraph 6 that in 2003 his brother was arrested by a group of Sinhalese police officers who considered that he might be a Liberation Tigers of Tamil Eelam (LTTE) supporter, as he was from Jaffna and was Tamil. The brother was detained in jail for 10 days and was the subject of subsequent court proceedings. In 2007 in Negombo, his brother was one of a number of Tamil people travelling in a bus to a Red Cross meeting, and the Tamils on the bus were taken off into police custody and detained for two days. They were beaten by police officers, and the brother was again taken to court and subsequently released.

2. In 2009, the brother was travelling from Negombo to Chilaw by bus and on arrival at Chilaw was immediately arrested by Sinhalese police, who beat him all over his body and took him to jail.  He was detained under a ‘D.O’, which meant that he could be held for an indefinite period without charge. News reached the family of the arrest, and the applicant’s father went to Chilaw and was told that the brother was being held on suspicion of terrorist activities because he was a Tamil born in Jaffna. After one and a half months, the brother was released following payment of a bribe to a police officer. 

3. The applicant referred to the damaging effects of detention upon his brother and a number of admissions to hospital as a result. 

4. The applicant went on to say that in 2006 to 2007 he was travelling on a bus from Colombo to Sapuwaskada. He was stopped at a checkpoint, and the Sri Lankan Army took him off the bus and detained him. He was stripped and questioned. They did not believe that he was on the bus for work purposes, and the applicant was handed over to the police, taken to the police station and further questioned. The police said that as the applicant was a Tamil from Jaffna, he would be involved with the LTTE. He was detained for a number of hours. He was released only when his employers confirmed his employment.

5. In 2009, the applicant was required to work at the Colombo International Airport. His boss and the applicant were going through a security checkpoint when he was again arrested by three Air Force officers. Once again, he was taken away and stripped and searched and accused of being a LTTE supporter/member. The applicant’s boss was a Sinhalese woman who spoke to the officers and the applicant was ultimately released.

6. The applicant next asserts that one day he was required to complete a job at the Ceylico office close to the President’s office. He had to provide his national identity card to the security at the lobby, and the card states that he is a Tamil from Jaffna. The President’s security forces required the applicant to come to them in the lobby of the building and told him that he must leave immediately and should not return.

7. The applicant deposed that under the President’s Security Division (PSD) powers the authorities have very extensive powers and that he would be considered a suspect if anything happened to threaten the security of the President or if any terrorist act was carried out in Sri Lanka. The applicant deposed that although he was not jailed, as a Tamil he was already considered guilty in the eyes of Sinhalese and the PSD. He deposed to suffering fear of arrest, torture and detention and of his mental health deteriorating like his brother’s.

8. The applicant went on to say that if he returned to Sri Lanka, he feared arrest, interrogation and serious harm, torture and lengthy imprisonment or death. This fear of harm related to the police, the Criminal Investigation Department (CID), the Sri Lanka Army (SLA) and the PSD and/or other paramilitary groups. The applicant also forwarded copies of medical records, which are at CB310 - 322.

9. The applicant’s irregular maritime arrival entry interview, which of course predated the visa application, is at CB200 - 216. The relevant part of the material is at CB210 - 211, where the applicant explained why he had left Sri Lanka. Although the matters recorded are in some respects more detailed and in some respects slightly different from the material in the statutory declaration already set out above, in my opinion for present purposes the general tenor of the document is to the same effect as the statement.

10. The application was considered by a delegate of the first respondent, whose decision record is at CB170 - 192. The delegate accepted that the applicant was a Tamil man from Sri Lanka, was born in Pulopalai, Jaffna, Northern Province but originated from Negombo, Puttalam, North Western Province (CB170).

11. The delegate noted that the applicant was a 25 year old Tamil male and accepted that he was a citizen of Sri Lanka. The delegate noted that the applicant had attended a protection visa interview on 28 September 2012 and summarised his claims at CB173 as:

    ·“The applicant claims that he is of Tamil ethnicity and practising Christian religion;

    ·The applicant claims that he has not been directly targeted by the Sri Lanka government authorities, he has regularly faced discrimination because of his Tamil race and imputed as a supporter of LTTE;

    ·The applicant claims that if he was forced to return to Sri Lanka he would be at risk of being harmed because of being a failed asylum seeker;

    ·The applicant claims he is a 25 year old male citizen originating from Negombo, Puttalam, North Western Province.”

12. The delegate then went on to set out the applicant’s more detailed claims, which repeat the applicant’s brother’s difficulties in 2003, 2007 and 2009 in Chilaw. The delegate also repeated the claims of detention and questioning suffered by the applicant. The delegate found at CB177:

    “The applicant provided generally consistent information about his claims and was able to provide a fairly coherent recounting of his life a fairly clear vision of the events which led him to leave Sri Lanka.  

    The applicant stated that after finishing high school in 2005, he was employed as an apprentice “Boilmaker” with the “Brown and Company” in Colombo. He worked for the company until he left Sri Lanka, and during the years he was able to move up in the company and his last position was a technician. The applicant explained some of the incidents that he experienced and how he was harassed by Sri Lankan authorities and his ID was checked and was unable to move freely in some restricted areas because he was from a Tamil background and born in Jaffna. He stated that during these incidents he was imputed that he could be a supporter of LTTE. Whilst these incidents were discriminatory in nature and the applicant felt harassed and targeted, he was never arrested or charged as being supporter of LTTE by the Sri Lankan authorities.”

13. The delegate noted country information, most particularly in relation to persons returned to Sri Lanka as failed asylum seekers. The delegate noted at CB184:

    “The only time the applicant has been questioned about possible LTTE involvement was in 2006, 2009 and 2011, and on all these occasions the applicant was able to secure his release simply by denying involvement in the LTTE.

    The applicant has continuously faced discrimination by the Sri Lankan authorities but has never actually been identified as being involved with the LTTE and has always been released. This satisfies me that his risk of being imputed with an LTTE profile in future is remote. The applicant specifically stated at PV interview he has never been a member of the LTTE, nor did he ever make claims of being politically active in any way.  I am prepared to accept that Tamils will continue to be discriminated against, but I am not satisfied that this amount to persecution or that the applicant faces a real chance of persecution on this basis in the future. 

    I note the applicant has claimed he will be more easily targeted because his national ID card mentions that he is born in Jaffna.  The applicant has raised only one incidence when he was sent to complete a job in a building close to the Sri Lankan president’s office. The President’s Security Forces (PSD) stopped him and did not allow finishing the job. He was asked to leave and they asked his employer to send them the report of his movements to them. I am not satisfied that this incidence of being asked to leave a building near the President’s office amounts to persecution.  Therefore, I am not satisfied the applicant will face persecution on this basis in the future.” 

14. The delegate considered whether the applicant would face harm as a failed asylum seeker but found at CB188:

    “For the applicant in this case, I have already discussed that I am satisfied he has no profile as an LTTE member whether imputed or actual. I am therefore satisfied the chance of him being identified as such on return is remote, even taking into account his Tamil race. The applicant left Sri Lanka illegally however and according to the above information, this may place him at risk of being questioned and detained for a period. The country information quoted above does not indicate that this is a strong possibility, and I am particularly persuaded by the DFAT report quoted above, which seems to indicate this is unlikely. However, even if this does occur, I am satisfied this would happen because the applicant breached a law of general application. If he is prosecuted, I am satisfied this would be done to achieve a legitimate state of co-objective, that is, to control border security, and, therefore, this would not amount to persecution.” 

15. The delegate went on to find that the applicant did not have a well-founded fear of persecution for a Refugee Convention reason and, further, that the applicant would not face a real risk of significant harm if returned to Sri Lanka (see the complementary protection criteria in section 36(2)(aa) of the Migration Act 1958).

16. The applicant’s lawyers, Fragomen, sent an extensive written submission to the Tribunal in support of the applicant’s application for review on 13 May 2013. It is at CB86 - 130. This written submission recorded the applicant’s earlier life in considerable detail and referred once again to the applicant’s brother’s difficulties in 2003 and subsequently. It repeated the difficulties faced by the applicant himself.  Matters asserted to have happened to the applicant and his brother are entirely consistent with the earlier assertions that the applicant had made.

17. The only factual matters raised relate to time after the applicant had left Sri Lanka. At paragraph 73 - 74 (CB98) details were given of inquiries made by an unknown man wearing civilian clothes in January 2013 and an unproductive phone call to his former employer (paragraph 77, CB99).

18. The written submissions refer extensively to country information, and lay emphasis upon the prospect that the applicant would be held on remand in Negombo Prison Remand Unit upon return to Sri Lanka (see paragraph 104, CB108).

19. The written submissions lay emphasis upon the poor conditions in jail in Sri Lanka, in any event.

20. Following the hearing before the Tribunal on 20 May 2013, the applicant was given an opportunity to provide further information and documents. Fragomen took up this invitation on 12 June 2013 (CB64 - 67, together with annexures). The written submissions relevantly responded to Tribunal concerns as to whether the applicant and his family were actually beaten by Sinhalese people in Negombo. The applicant referred to having raised this in his entry interview at CB211.  Otherwise, the letter is more in the form of submissions. 

The Tribunal’s decision

1. The Tribunal’s decision record is at CB8 – 67. The Tribunal summarised the applicant’s claims and evidence at CB9 and following. The paraphrase of what the applicant had said from time to time at his entry interview and subsequently at CB9 - 19 is, in my view, a fair one. 

2. The Tribunal then sets out consideration of claims and evidence at paragraphs 39 - 94 (CB20 – 38). The passages referred to show a detailed recitation of what was said at the Tribunal hearing and, in my view, can fairly be paraphrased as showing a sensitive and reasoned consideration of the applicant’s claims. In the main, the Tribunal accepted what the applicant said, both about himself and his brother, although the Tribunal did not accept that government authorities had sought to find the applicant following his departure. 

3. The Tribunal accepted the applicant’s claims of discriminatory conduct against him while he was in Sri Lanka but was not able to accept that, whether individually or cumulatively, the matters that had affected him amount to serious harm. 

4. The Tribunal went on at paragraph 95 (CB39) and following to consider the reasonably foreseeable future and consider the extensive country information in this regard. Perhaps the kernel of the findings is at paragraph 101 CB41 where the Tribunal said:

   “The Tribunal has accepted that the applicant was in the past stopped and questioned by the authorities.  The incident while on his way to Sapuwaskada and while at the airport and the Ceylico building in 2009.  It has accepted that the authorities may have recorded his information.  It has accepted that his former employer may have been asked to report to the PSD on the applicant’s whereabouts.  It has also accepted that the applicant may have been subject to an inquiry at a bus stop and that he may have been questioned from time to time at checkpoints, although it has not accepted that the applicant has been subject to constant interrogation, as has been claimed. It finds that he was released on each of these occasions and does not accept that this would have occurred if he had been suspected of association with the LTTE or with terrorist activities.  The Tribunal has considered the applicant’s evidence about the situation after the September 2009 incident at the Ceylico building but has not accepted that the applicant was subjected to continuing difficulties as claimed, such as constant interrogation and accusations of being part of the LTTE.  It does not accept that he was of interest to the authorities for such reasons as support for, or association with the LTTE.
   It has not accepted that, since his departure from Sri Lanka and the cessation of his employment with Brown and Company, the CID or any other government agency has shown interest in or concern about the applicant by making inquiries of the applicant’s father.  The Tribunal accepts that the authorities are aware that he has worked at places such as the airport and the Ceylico building.  This may well be recorded.  It may be that the applicant had access to certain information about security.  However, the Tribunal does not accept that this has led him to be regarded as being connected with the LTTE or terrorism, or that it would lead him to be regarded in this way if he were to return.

1. The Tribunal then turned its attention to whether the applicant would face persecution as a failed asylum seeker (paragraphs 103 at CB42 and following). Essentially, although the Tribunal accepted that persons thought to be connected with the LTTE might well face detention on return, and accepting also that the applicant, as an unlawful departee from Sri Lanka, would face at least a short period of incarceration upon return, the Tribunal’s finding at paragraph 116 – 117 at  CB46 was:

   “The Tribunal accepts on the information before it that the applicant may face a short period on remand when he first returns to Sri Lanka. However, it is not satisfied that there is any more than a remote chance that he would ultimately be sentenced to a term of imprisonment as has been claimed.  It finds also that the evidence indicates that, following a possible initial period on remand, such people are able to obtain bail.

   As noted above, the Tribunal has accepted that the applicant will be questioned by the authorities on return and he may be detained for up to a few days pending a bail hearing. It accepts that he may be held in conditions on remand that are crowded and uncomfortable. It accepts that the applicant may be charged and prosecuted under the law in relation to illegal departure on his return.  It finds that the evidence indicates that, in practice, people face fines for such offences. However, the Tribunal does not accept that such questioning, prosecution, detention or penalty would, even considered cumulatively, constitute serious harm for the applicant”.

2. The Tribunal went on at paragraph 118 to note that the detention of persons in these circumstances arose from the implementation of a law of general application that was not, on the evidence before it, being applied in a discriminatory manner.

1. The Tribunal concluded (paragraph 128 CB51) that the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted in Sri Lanka for any Convention reason. The Tribunal then went on separately to assess the applicant against the complementary protection criterion at paragraphs 129 - 163 CB51 - 60. The reasoning involved, necessarily, was much the same but the factual conclusion was identical, namely, that the applicant did not satisfy the criterion. 

The amended grounds of application (filed 23 September 2014)

Ground 1- The second respondent has taken into account a number of irrelevant considerations and therefore jurisdictional errors have occurred.

1. In the applicant’s Outline of Argument, filed 22 October 2014, it is submitted (paragraph 6) that the Tribunal:

   “has taken into an irrelevant consideration, in that the Second Respondent has considered that the fact that the Applicant’s brother was detailed and tortured during the time of the Civil War was unacceptable, but now that the Civil War has concluded, because the Applicant’s brother has remained of interest to the Sri Lankan authorities, then this is now acceptable.  In this regard, it is submitted that the Applicant’s brother and the Applicant himself have undergone persecution by the authorities and the fact that the Civil War was in progress, or has been concluded is irrelevant.  In this regard, a jurisdictional error has occurred as the decision-maker has taken an irrelevant consideration into account.” 

2. This submission suffers from a particular difficulty. The Tribunal did not find that the brother remained of interest to the Sri Lankan authorities. It expressly found that he was not (see paragraph 77 of the judgment). Furthermore, the fact that the Tribunal thought that the cessation of the civil war might be of significance was, in my view, an entirely permissible conclusion. Plainly, the continuance of an active civil war might be likely to give a more heightened sense of tension on the part of the Sri Lankan authorities towards Tamils such as the applicant and his brother who were born in the north. It would be reasonable to assume this might dissipate once the war was over. There is nothing impermissible in the way the Tribunal took this into consideration.

3. Similarly, the submission at paragraph 10 of the applicant’s written submissions that the Tribunal erred in taking into consideration the fact that the applicant was promoted to a technical position in 2010, and would not have been on a suspect LTTE list accordingly, is misconceived. All the Tribunal was saying, was that the applicant’s asserted claims of ongoing persecution were fairly assessed against a number of considerations, including that he had obtained gainful employment and been able to be promoted in 2010. In my view, there was no error in so concluding.  It was not an irrelevant consideration, as the applicant submits.

4. The other matters in the applicant’s written submission, in my opinion, are all simply merits review.

   Ground 2 – The second respondent has reached a number of mistaken conclusions and jurisdictional errors have occurred

5. This ground can be dealt with shortly. This is merits view in its most unadorned form. It is not permissible.

   Ground 3 - The second respondent has not taken into account a relevant consideration and jurisdictional error has occurred.

6. The written submissions, insofar as they touch upon this matter, are difficult to construe. The relevant considerations said to have been overlooked are not, in any meaningful way, itemised. The assertion of failure to follow PAM3 is wrong because, as the first respondent’s written submissions point out at paragraph 65, PAM3 was explicitly taken into account. Any criticisms advanced in relation to the decision in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) CLR 415 are simply misconceived (see first respondent’s written submissions, paragraphs 68 - 71). Finally, the assertion that the Tribunal failed to consider State protection adequately is entirely wrong. The Tribunal clearly did consider it and found at paragraph 88, CB37, the applicant “was not denied the protection of the state due to influence by neighbours or any other reason.”

7. It should be noted, as the first respondent’s submissions point out, in any event, the Tribunal did not accept the applicant’s contentions regarding persecution, and therefore was not obliged to formally consider issues of State protection in any event.

8. The written submissions of the First Respondent go on to deal with the decision of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. That decision is not now of any moment. In Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 the High Court effectively overruled North J’s decision, which it had itself been the subject of a Full Court authority in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39. The Full Court held the first instance decision in WZAPN to have been wrongly decided.

9. Whether the deprivation of liberty that the applicant was likely to suffer on return to Sri Lanka would constitute persecution would depend on the particular facts. The High Court in WZAPN referred at [59] to the observations of McHugh and Kirby JJ in appellant S395:

   “whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.”

10. In this case the Tribunal plainly addressed the matter as to whether or not the applicant’s potential detention would give rise to a finding of persecution and concluded that it did not. This was a finding open to it on the evidence.

Conclusion

1. In my opinion, the findings of the Tribunal were all clearly open to it on the materials before it. The criticisms advanced in the amended application and the applicant’s Outline of Argument are, in my view, not sustained. Counsel for the applicant’s oral submissions before the Court did not materially add to the written submissions. The application will be dismissed with costs. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Demack

Associate: 

Date:  20 May 2016