Bzagl v Minister for Immigration and Border Protection
[2017] FCA 214
•7 March 2017
FEDERAL COURT OF AUSTRALIA
BZAGL v Minister for Immigration and Border Protection [2017] FCA 214
Appeal from: BZAGL v Minister for Immigration & Anor [2016] FCCA 1235 File number: QUD 425 of 2016 Judge: MOSHINSKY J Date of judgment: 7 March 2017 Catchwords: MIGRATION – Protection (Class XA) visa – refusal of visa application by delegate of Minister – decision of delegate upheld by Tribunal – dismissal of application for judicial review of Tribunal decision by Federal Circuit Court of Australia – no jurisdictional error established – appeal dismissed Legislation: Migration Act1958 (Cth), ss 36(2)(aa), 91R Cases cited: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Date of hearing: 2 December 2016 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 33 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms J Lucas Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
QUD 425 of 2016 BETWEEN: BZAGL
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
7 MARCH 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Background
The appellant, a citizen of Sri Lanka, arrived in Australia on 29 May 2012. On 21 September 2012, he applied for a Protection (Class XA) visa.
On 16 January 2013, a delegate of the first respondent (the Minister) decided to refuse the application for a protection visa.
The appellant applied to the Refugee Review Tribunal (the Tribunal) (now the Administrative Appeals Tribunal) for review of the delegate’s decision.
On 20 May 2013, a hearing took place before the Tribunal. The appellant gave evidence at the hearing. The appellant’s representative had provided an extensive written submission to the Tribunal before the hearing. Following the hearing, the appellant’s representative provided a further written submission.
On 31 January 2014, the Tribunal decided to affirm the decision of the delegate not to grant the appellant a Protection (Class XA) visa.
The appellant applied to the Federal Circuit Court of Australia (the Federal Circuit Court) for judicial review of the Tribunal’s decision.
On 5 November 2014, a hearing took place before the Federal Circuit Court. Both the appellant and the Minister were represented by counsel at that hearing.
On 20 May 2016, the Federal Circuit Court decided that the application should be dismissed.
The appellant appeals to this Court from the decision of the Federal Circuit Court. The appellant appeared for himself with the assistance of an interpreter.
The Tribunal decision
The Tribunal’s findings are set out in a detailed decision record (the Tribunal decision).
In broad terms, the appellant claimed to fear harm: on account of his imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE), arising from his Tamil ethnicity; on the basis that he was considered a suspect in criminal or terrorist activities; and as a failed asylum seeker (Tribunal decision, [7]-[8]). He claimed to fear being arrested, detained, interrogated, tortured and subjected to lengthy imprisonment or killed. He claimed to fear the police, the Criminal Investigation Department (CID), the Sri Lankan Army (SLA), the President’s Security Forces (PSD), and paramilitary groups and that the authorities would not protect him (Tribunal decision, [8]).
As recorded in the Tribunal decision, the appellant referred to a number of incidents which he claimed had occurred in the course of his employment. The first incident occurred in 2006-2007 when the appellant was travelling on a bus from Colombo to Sapugaskanda and was stopped at a checkpoint within the high security zone. He claimed that the authorities suspected him of being involved with the LTTE because he did not have a pass. They took him back to the police station until they could confirm his identity with his employer and only let him go on the condition that he report back to them (Tribunal decision, [43]). The Tribunal ultimately accepted that there was an incident in 2006 in which the appellant was stopped at a checkpoint in a high security zone while travelling to Supugaskanda for work and other aspects of his evidence (Tribunal decision, [56]). The Tribunal stated that it may be that the authorities took the appellant’s details and warned that he would have to go back to the police station for questioning if a suspicious incident were to occur, but stated that there was no suggestion in the evidence that any such incident occurred or that the appellant was recalled for questioning at the police station (Tribunal decision, [56]). The Tribunal found that the incident occurred in the context of security checking in a high security zone during the Sri Lankan civil war; and that the appellant’s release indicated that he was able to satisfy authorities of the reason for his presence in the area. The Tribunal did not accept that the authorities would have released the appellant if they considered him to be an LTTE member or sympathiser (Tribunal decision, [57]).
The appellant also described an incident at Colombo International Airport in 2009, where he claimed that: army officials checked his ID card and found that he was born in Jaffna; they took him to a place near the checkpoint; they performed a security check on him; they asked him why he came there and whether he was involved in the LTTE; they were about to hit him with their gun; he told them that he came to the airport to work; his boss noticed this and she came immediately and rescued him; she told the authorities that he was not involved in the LTTE and that she knew him personally (Tribunal decision, [46]). The Tribunal ultimately accepted that this incident had occurred (Tribunal decision, [59]). However, the Tribunal did not accept that the appellant would have been released if the authorities considered that he was in fact affiliated with the LTTE (Tribunal decision, [60]). Further, the Tribunal did not accept that the incident involved serious harm or persecution of the appellant (Tribunal decision, [60]).
There was a further incident in September 2009 at the Ceylinco Building where the appellant was stopped by the PSD, required to provide identification and asked whether he had any LTTE connections; he was then informed that he needed to leave the building (Tribunal decision, [47]). In response to questions from the Tribunal, the appellant said that he was not physically hurt (Tribunal decision, [48]). The Tribunal ultimately accepted that, while working at the Ceylinco office, the appellant was questioned by the PSD, who informed him to leave immediately. The Tribunal did not accept, however, that this constituted serious harm to the appellant (Tribunal decision, [61]).
The Tribunal put to the appellant that, despite his claimed difficulties, he continued to work for the same employer until 2012 and received a promotion in 2010, and that this might suggest that he was not suffering persecution in his employment or having significant difficulties (Tribunal decision, [49]). The Tribunal put to the appellant that this might lead the Tribunal to doubt that the appellant had such significant problems in his employment or was restricted or checked or harassed (Tribunal decision, [52]). The Tribunal found that the appellant’s ability to engage in such work until his departure in 2012 “did not sit comfortably with the claimed ongoing problems (including constant interrogation about his travel) and his claimed profile as a person suspected of LTTE involvement” (Tribunal decision, [63]). The Tribunal did not accept that the appellant was subjected to “continuing difficulties” of the type claimed by the appellant (Tribunal decision, [63]).
The Tribunal considered in combination the various incidents which it had accepted had occurred, but did not accept that these incidents, even in combination, constituted serious harm (Tribunal decision, [65]).
The Tribunal was not satisfied that a number of other claims made by the appellant constituted serious harm. These included a head injury suffered by the appellant as a child and associated mental harm (Tribunal decision, [66]) and claims made about matters affecting the appellant’s brother (Tribunal decision, [66]-[78]). In relation to the claims concerning the appellant’s brother, the Tribunal did not accept that he had been subjected to any “significant attention” from the Sri Lankan authorities after an incident described as having occurred in February 2009 and did not accept that, after the end of the civil war, the appellant’s brother was regarded as being involved in the LTTE or terrorist activities. It did not accept that the brother’s profile would cause the appellant to be of interest to the authorities if he were to return to Sri Lanka (Tribunal decision, [78]).
The Tribunal did not accept the appellant’s claims about interest from the authorities since the appellant had left Sri Lanka and, as a result, did not accept that the appellant was subjected to continuing difficulties from the authorities (Tribunal decision, [79]-[83]).
In the appellant’s written submissions, and when the appellant was asked at the hearing whether he had any other problems, he referred to several claimed incidents involving Singhalese people. While the Tribunal accepted that the appellant may have experienced some harassment from Singhalese neighbours in the form of verbal abuse, it did not accept that this amounted to serious harm (Tribunal decision, [84]-[89]).
The Tribunal did not accept that the stigma attached to the appellant’s brother’s mental illness gave rise to serious harm to the appellant (Tribunal decision, [90]). While the Tribunal accepted that there was some level of discrimination against Tamils in relation to employment and accommodation, this did not, either individually or cumulatively, amount to serious harm (Tribunal decision, [91]-[94]).
At [95], the Tribunal noted that it was required to have regard to the reasonably foreseeable future, and referred to independent information that indicated that, following a long-running civil war, the LTTE were defeated militarily in May 2009. At [99], the Tribunal stated that, although it accepted that some abuses continue to occur, it nevertheless found that the independent information indicated that the situation had improved since the end of the civil war. At [101], the Tribunal referred to some of its key factual findings (set out above) and concluded that it did not accept that these matters had led the appellant to be regarded as being connected with the LTTE or terrorism, or that they would lead to him being regarded in this way were he to return. At [102], the Tribunal stated that it did not accept that the appellant was of interest to the authorities as a result of real or perceived links with the LTTE or that he would be if he were to return.
The Tribunal considered the appellant’s claim to fear persecution on his return to Sri Lanka by reason of his status of a failed asylum seeker (Tribunal decision, [103]-[108]). While the Tribunal accepted that those with an actual or perceived association with the LTTE may face a risk of harm on their return to Sri Lanka, the Tribunal did not accept that the appellant had such a profile (Tribunal decision, [109]). The Tribunal accepted that the appellant would be questioned by the authorities on his return and that he may be detained for up to a few days pending a bail hearing (Tribunal decision, [115]). It further accepted that he may be charged and prosecuted under illegal departure laws and found that, in practice, people face fines for such offences (Tribunal decision, [115]-[116]). The Tribunal did not accept that questioning, prosecution, detention or the imposition of a penalty would, even if considered cumulatively, constitute serious harm for the appellant (Tribunal decision, [117]). Further, it found that these measures were carried out by Sri Lankan authorities pursuant to laws of general application (Tribunal decision, [118]).
The Tribunal considered all the appellant’s claims individually and cumulatively but was not satisfied that the appellant had a well-founded fear of persecution in Sri Lanka for any Convention reason (Tribunal decision, [121]-[128]).
The Tribunal went on to consider whether the appellant’s claims could be said to give rise to a real risk of significant harm under the complementary protection criteria. It did not accept that any of the incidents the appellant had described as having occurred in the course of his employment, either individually or cumulatively, gave rise to significant harm (Tribunal decision, [137]). The Tribunal took the same view in relation to: the claims relating to the appellant’s brother; the alleged incidents following the appellant’s departure (which the Tribunal had previously rejected); and the claims about problems with the Singhalese, the stigma associated with mental illness, and general discrimination against Tamils in Sri Lanka. It was not satisfied that there were substantial grounds for believing that there was a real risk that the appellant would suffer significant harm in relation to these matters (Tribunal decision, [139]-[147]). The Tribunal considered whether the appellant’s status as a failed asylum seeker gave rise to a real risk of significant harm, but was not satisfied that there were substantial grounds for believing that there was a real risk of the appellant suffering significant harm on this basis (Tribunal decision, [148]-[152]). The Tribunal considered all of the appellant’s circumstances on an individual and cumulative basis but was not satisfied that the appellant was a person in respect of whom Australia owed protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act) (Tribunal decision, [155][161]).
The Federal Circuit Court decision
In the Federal Circuit Court, the appellant relied on three grounds in support of his application for judicial review. These were set out in an amended application filed on 23 September 2014. The grounds were:
(a)that the Tribunal had taken into account irrelevant considerations;
(b)that the Tribunal had reached a number of mistaken conclusions amounting to jurisdictional error; and
(c)that the Tribunal had not taken into account relevant considerations.
The first ground alleged that the Tribunal had taken into account an irrelevant matter when considering claims concerning the appellant’s brother, insofar as it relied on the ending of the civil war in Sri Lanka (see the reasons of the primary judge (the Reasons) at [31]). The primary judge noted that the fact the Tribunal thought that the cessation of the civil war might be of significance was an entirely permissible conclusion (Reasons, [32]). The primary judge also found that the appellant’s complaint that the Tribunal had wrongfully taken into account the fact that he was promoted in 2010, and accordingly would not have been a suspect on the LTTE list, was misconceived (Reasons, [33]). The primary judge considered the other matters raised by the appellant with respect to this ground to constitute merits review (Reasons, [34]).
The primary judge likewise considered the second ground, concerning the Tribunal having reached a number of mistaken conclusions, to be merits review (Reasons, [35]).
In relation to the third ground, namely that the Tribunal failed to take into account relevant considerations, the primary judge noted that the appellant’s submissions were difficult to construe. The primary judge found that appellant’s contention that the Department’s Procedures Advice Manual 3 (PAM3) was not taken into account, and that the Tribunal failed to consider state protection, were misconceived (Reasons, [36]). The primary judge found that the Tribunal had addressed whether or not the appellant’s potential detention would give rise to a finding of persecution, and concluded that the Tribunal’s finding that it did not was open to the Tribunal on the evidence (Reasons, [40]).
The appeal
The appellant’s sole ground of appeal is that he does “not agree” with the Federal Circuit Court’s decision. The appellant’s ground is not particularised. It does not identify any particular error in the decision of the primary judge; nor does it identify any error in the decision of the Tribunal.
Consideration
The appellant did not file a written submission and did not make any substantive oral submissions at the hearing before me.
In circumstances where the appellant was unrepresented in this Court, the Minister was content to approach the matter on the basis of the grounds of judicial review relied on by the appellant in the Federal Circuit Court (see [25] above). The Minister’s submissions can be summarised as follows:
(a)There is no error in the way that the primary judge dealt with the Tribunal’s decision. With regard to the appellant’s complaint that it was an irrelevant consideration to take into account the fact that the civil war had ended, the primary judge was correct to find that the Tribunal’s reasoning was permissible.
(b)The Tribunal’s task was to engage in a predictive exercise in considering circumstances in the future on the basis of the material in the present and what had happened to the appellant in the past. Having found that the civil war had ended, it was open to the Tribunal not to be satisfied that there was a real chance that the appellant would face any harm on the basis of past experiences in Sri Lanka and in finding that the appellant did not have a well-founded fear of persecution on this basis if he returned to Sri Lanka now or in the reasonably foreseeable future.
(c)The primary judge was correct to find that the Tribunal did not err in taking into account the fact that the appellant was promoted in 2010. The Tribunal had put to the appellant at the hearing that he was able to keep working for the same employer until 2012 and got a promotion in 2010 and that this might suggest that he was not suffering persecution in his employment or having significant difficulties (Tribunal decision, [49], [52]-[53]). In particular, the Tribunal noted that the length of time the appellant had worked for his employer and his promotion might lead the Tribunal to doubt he ever had such significant problems in his employment or was restricted, checked or harassed (Tribunal decision, [52]). The Tribunal noted that in spite of his claimed difficulties, the appellant had received a promotion in 2010 to a technician position which required him to travel to places such as factories and hotels to do jobs. It was open to the Tribunal to find that the appellant’s ability to engage in such work until his departure in 2012 did not sit comfortably with the claimed ongoing problems and his claimed profile as a person suspected of LTTE involvement (Tribunal decision, [63]).
(d)The primary judge found that the third ground of review, which comprised a complaint that the Tribunal had failed to take into account a number of relevant matters, was entirely misconceived. There were a number of assertions made in the appellant’s written submission to the Federal Circuit Court, including that: (i) the Tribunal did not take into account the fact that, although the civil war had ended in 2009, there is still a similar atmosphere in Sri Lanka today; (ii) the incessant questioning, detention and prevention of work at various places amounted to systematic and discriminatory conduct under s 91R of the Migration Act and the Tribunal had not appropriately considered the meaning of systematic conduct; and (iii) the Tribunal did not consider whether the state was able to protect the appellant.
(e)The Tribunal had regard to independent information concerning the security situation in Sri Lanka and gave weight to a DFAT report which stated that the security situation in the north and east of Sri Lanka had greatly improved since the end of the military conflict, although incidents of violence could occur (Tribunal decision, [95]). The Tribunal noted that it had not accepted that the appellant had suffered serious harm in Sri Lanka in the past. Although it accepted that some abuses continued to occur, it nevertheless found that the independent information indicated that the situation had improved since the end of the civil war (Tribunal decision, [99]). It is therefore erroneous to suggest that the Tribunal did not take into account the current state of affairs in Sri Lanka.
(f)The Tribunal properly considered whether the difficulties the appellant suffered in the course of his work could give rise to either serious or significant harm. While the Tribunal accepted that the appellant may have been subject to inquiry at a bus stop and that he may have been questioned from time to time at checkpoints, it did not accept that he had been subjected to constant interrogation as he claimed (Tribunal decision, [101]). It was entirely permissible for the Tribunal to find that the appellant’s circumstances, when considered both individually and cumulatively, did not give rise to a real chance of serious harm and a real risk of significant harm (Tribunal decision, [94], [157]). For the purposes of the Refugees Convention, the feared harm will constitute persecution “only if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice”: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [73] per McHugh J. Whilst the appellant may have faced discrimination, he did not face the parallel requirement of harm sufficient to render his discrimination “persecution”.
(g)As noted by the primary judge at [37], as the Tribunal did not accept the appellant’s contentions regarding persecution, it was not obliged to formally consider issues of state protection, but nonetheless did so at [88] of the Tribunal decision.
In my view, no error is shown in the decision of the primary judge. The grounds of appeal are not particularised. In circumstances where the appellant is unrepresented, I am prepared to consider the grounds of judicial review raised by the appellant in the Federal Circuit Court. Having considered those grounds, I do not think error is shown in the decision of the primary judge and I do not think jurisdictional error is established in relation to the Tribunal’s decision. My reasons are as follows:
(a)In relation to the first ground (namely, that the Tribunal took into account irrelevant considerations), it appears from the appellant’s outline of submissions below that the focus of the ground is [76], [77] and [78] of the Tribunal decision. It was submitted on behalf of the appellant that the Tribunal erred in having regard to the fact that the civil war had ended. It was submitted that it was an irrelevant consideration that past persecution had occurred during the civil war and not after it; “[t]he fact that it occurred is enough”. It would appear that the reference to past persecution in that submission primarily related to the appellant’s brother. In this regard, the Tribunal at [77] accepted that, while the civil war was going on, there were three occasions on which the appellant’s brother was detained while travelling outside Negombo, and that it may be that the appellant’s brother attracted suspicion as a Tamil travelling for various purposes outside Negombo. The Tribunal stated that it accepted that these were serious incidents for the appellant’s brother and affected his mental health, but found that he was released on all three occasions. The Tribunal stated (at [77]) that, on the evidence before it, the Tribunal “does not accept that the applicant’s brother has remained of interest to the Sri Lankan authorities because he is regarded as being affiliated with the LTTE or as having been involved in terrorist activities”. I think it was open to the Tribunal to reason in the way that it did and no error is shown in the way that the Tribunal had regard to the end of the civil war in reaching this conclusion. Similarly, I do not think there is any error shown in the balance of [76] to [78] of the Tribunal decision. Nor do I think any error is shown in [63] of the Tribunal decision, which was also referred to in the appellant’s submissions below. The primary judge was correct to reject the appellant’s submissions in that regard at [33] of the Reasons.
(b)In relation to the second ground (namely, that the Tribunal reached a number of mistaken conclusions amounting to a jurisdictional error), it was submitted below that the Tribunal had “made a mistaken conclusion, in that it has failed to consider that the Applicant fits within instances of serious harm as set out in section 91R(2) of the Act”. The difficulty with the appellant’s submission (as set out in his written submission below) is that it relies on the appellant’s evidence (or alleged inferences from that evidence) rather than the facts as found by the Tribunal. Having regard to the facts as found by the Tribunal (eg at [101]), no error of the kind contended for is established. I think the primary judge was correct to conclude that the appellant was, in effect, seeking merits review of the Tribunal’s decision.
(c)In relation to the third ground (namely, that the Tribunal failed to take into account relevant considerations), it was submitted on behalf of the appellant below that: the appellant “faced systematic and discriminatory conduct by incessant questioning and detention and prevention of work at various places”; the Tribunal had not fully considered the meaning of systematic conduct; and the Tribunal had not considered that the state was unable to protect the appellant from Singhalese neighbours. Again, the difficulty with the appellant’s submission (as set out in his written submissions below) is that it relies on the appellant’s evidence (or alleged inferences from that evidence) rather than the facts as found by the Tribunal. Having regard to the facts as found by the Tribunal (eg at [101]), no error of the kind contended for is established. In my view, the Tribunal properly considered whether the difficulties the appellant suffered in the course of his work could give rise to either serious or significant harm. It was permissible for the Tribunal to find that the appellant’s circumstances, whether considered individually or cumulatively, did not give rise to a real chance of serious harm or a real risk of significant harm (see, eg, Tribunal decision, [88], [94], [101], [109], [117], [150]). Finally, in relation to the submission regarding state protection, this issue did not arise in light of the Tribunal’s findings. In any event, it was considered (Tribunal decision, [88]).
Conclusion
For these reasons, the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore order that the appellant pay the Minister’s costs of the appeal.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 7 March 2017
0