BZAHO v Minister for Immigration
[2014] FCCA 2981
•23 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAHO v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2981 |
| Catchwords: MIGRATION – Protection (Class XA) visa – claim for complementary protection – where tribunal relied upon earlier findings of fact in respect of Convention-nexus claims – whether tribunal was entitled to do so – whether tribunal’s reasons adequate. |
| Legislation: Migration Act 1958, ss.5(1), 36(2)(a), 36(2)(aa), 36(2A) |
| SZFSK v the Minister for Immigration [2013] FCCA 7 SZTFZ v the Minister for Immigration [2014] FCCA 1861 |
| Applicant: | BZAHO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 790 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 8 December 2014 |
| Date of Last Submission: | 8 December 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 23 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kondich |
| Solicitors for the Applicant: | Rasan T. Selliah & Associates |
| Counsel for the First Respondent: | Ms Wheatley |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed 8 September 2014 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRG 790 of 2014
| BZAHO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for the issue of constitutional writs in respect of a decision of a refugee review tribunal given on 14 August, 2014 in which the tribunal affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (Class XA) visa.
The first respondent opposes the application. The second respondent enters a submitting appearance.
Both the applicant and the first respondent have filed written submissions to which I have had regard.
Background
The applicant is a national of Sri Lanka. He arrived in Australia on a visitor’s visa that was issued on 4 May, 2012. He arrived in Australia on 22 May, 2012.
On 15 August, 2012 the applicant applied to the first respondent’s department for the issue of a Protection (Class XA) visa.
The applicant claimed that by reason of his membership of a family which were well known supporters of the United National Party and General Sarath Fonseka, or because of his known support for the UNP and General Fonseka, he would suffer serious harm if he were to return to Sri Lanka. Further, he claimed that support for the Liberation Tigers of Tamil Eelam would be imputed to him for various reasons and that by reason of that imputed political opinion he would be at risk of harm if he was to return to Sri Lanka.
Finally, he claimed that by reason of some difficulties he had with a man called Asela, described in the material as an “underworld don” and a noted criminal, he was at risk of harm if he returned to Sri Lanka. Asela, he claimed, conducted an illicit brewery on land next to that owned by the applicant. Asela had threatened and harmed him because the applicant had complained about the brewery and had been able to do so because Asela is a supporter of, and he had the support of the government in Sri Lanka. Given the applicant’s political opinions and support for General Fonseka, the authorities and, in particular, the Sri Lankan Police did nothing to protect him from Asela.
The tribunal’s decision
In its reasons for decision, the tribunal recorded the applicant’s claims as they were made both when his application was before the first respondent’s delegate and when they were dealt with by the tribunal.
The tribunal also had before it written submissions made by the applicant’s representatives in response to the delegate’s decision to refuse to grant to the applicant a protection visa. Those submissions set out the applicant’s claims and also set out his case in respect of the findings by the first respondent’s delegate.
The applicant did not contend before me that the tribunal had misapprehended any of his claims, nor did he suggest that the tribunal did not deal with any of the factual matters relied upon by him in support of his claim for the visa.
The tribunal determined that the applicant and his family were well known in his home area as being supporters of the UNP and General Fonseka. However, the tribunal found that the applicant was not at risk of being seriously harmed because of his political opinion as a supporter of the UNP and General Fonseka. The tribunal determined that the risk of there being serious harm to the applicant for those reasons was very remote. The applicant does not challenge that finding in these proceedings.
As to the applicant’s conflict with Asela, the tribunal determined that whilst it had some concerns about some of the evidence the applicant gave about his conflict with Asela, the tribunal did accept that a man named Asela had an illegal brewery on land neighbouring that of the applicant’s and that the applicant and other people in the area complained about that to the police.
The tribunal found that the applicant suffered harassment as a consequence of complaints that he had made about the illegal brewery. The harassment included the throwing of lit firecrackers and rubbish onto the applicant’s land. Further, the tribunal accepted that the applicant and other people were involved in a physical fight with guests – “Asela’s men” – at a wedding. The tribunal found that the applicant had been injured by bruising but others had been more seriously injured in the fracas.
The tribunal rejected the applicant’s claims that Asela was able to operate with impunity and was able to threaten the applicant without consequence. The tribunal did not accept that there was a lack of police intervention for the applicant as a result of his complaint about Asela and his illegal activities.
There were two specific incidents relied upon by the applicant that the tribunal either did not accept or about which the tribunal had “doubts”. The first was a claim by the applicant that he narrowly avoided being seriously harmed or killed when a wire was placed across the road which he rode down on his motorbike early one morning. The second was a claim that the applicant was taken from his home by police for questioning, but then at the police station he was given over to Asela and his men who then blindfolded and tied him up, drove him to a lonely road, beat him, threatened to shoot him and issued him with a demand to pay one million rupees. He claimed that he was subjected to ongoing extortion demands.
The tribunal found the applicant’s descriptions of those incidents unconvincing. The tribunal did not accept that those events occurred and the tribunal did not accept that the applicant was threatened because he was a person who assisted the LTTE during the civil war or that the police had been complicit in threats against the applicant.
The tribunal concluded that it was not satisfied that the applicant had suffered serious harm in the past as a result of his conflict with the man named Asela. The tribunal accepted that the applicant had been harassed and threatened by him and had been involved in a fight because of the conflict relating to Asela’s illegal brewery on the land next to the applicant’s land, however, the tribunal did not accept that any further harm came to the applicant from Asela directly or from others including police on behalf of Asela.
The tribunal did not accept that Asela had acted towards the applicant in a way which would constitute serious harm “for one of the reasons specified in the Refugees Convention” (see paragraph 90 of the tribunal’s decision). The tribunal did not accept that the essential and significant reason for any harassment of the applicant by Asela was his political affiliations and, in particular, his support of the UNP or General Fonseka. The tribunal found that any harassment and intimidation of the applicant by Asela – and on behalf of Asela – was not essentially and significantly for a convention reason. The applicant does not challenge that finding in these proceedings.
The tribunal assessed that there was a very remote chance of future harm from Asela. The tribunal did not accept that the applicant’s support of the UNP gave him a heightened profile such that he would be targeted in the future for a convention reason by Asela or on behalf of Asela.
Further, the tribunal did not accept that the applicant will be viewed as a person who supplies goods for the LTTE because he had a business which involved motor vehicle spare parts which traded with someone people in Jaffna. The tribunal found that the applicant will not be imputed to be an LTTE supporter, will not have false charges made against him under the Prevention of Terrorism Legislation and will not be apprehended by the Sri Lankan authorities at the airport because of an imputed association with the LTTE or for any other reason.
The tribunal determined that the applicant did not face a real chance of serious harm in Sri Lanka because of an imputed political opinion as a person who supported the LTTE.
The tribunal considered whether the applicant would face serious harm having regard to the cumulative effect of all of the grounds upon which he relied and determined that he would not do so.
The tribunal considered the applicant’s claims to protection pursuant to s.36(2)(aa) of the Act – his complementary protection claims. At page 22 of the tribunal’s decision the tribunal iterated the necessary inquiry, namely, whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk that he will suffer significant harm.
The tribunal considered what was required to meet the definition of significant harm as set out in s.36(2A) of the Act and s.5(1) of the Act. The tribunal considered what was meant by the phrase real risk as used in the relevant legislation. The tribunal then said:
110. The tribunal notes that the courts have determined that a real risk can be equated with a real chance. Given the findings of fact outlined in the preceding paragraph, the tribunal is satisfied that the applicant does not face a real risk of significant harm in Sri Lanka because of his member and active support of the UNP and General Fonseka.
111. In addition, the tribunal is satisfied given the findings of fact outlined above, that there are not substantial grounds for believing the applicant is at real risk of significant harm because of his conflict with Asela. The tribunal is also satisfied that there are not substantial grounds for believing the applicant is at real risk of significant harm because of an imputed profile as a person who supported the LTTE.
112. After assessing all the evidence and considering the applicant’s claims individually and cumulatively, the tribunal is not satisfied that there are substantial grounds for believing that the applicant is at real risk of significant harm in Sri Lanka. Therefore, the tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. under section 36(2)(aa).
Consideration
In his application for review, the applicant specifies three grounds upon which it is said the relief sought by him could be granted. However, at the hearing of this application, the applicant abandoned two of those grounds. The remaining ground, ground 3 in the application, is in the following terms:
The RRT has failed to apply the correct test pursuant to section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars:
3.1 The Tribunal came to the conclusion that the applicant does not meet the complementary protection criteria “given the findings of fact outlines above [in the decision]”.
3.2 With regards to conflict with Asela the Second Respondent’s findings at [101], were that the “applicant faces a real chance of serious harm for a Convention reason”. Similarly, the entire analyses of this claim were founded on the basis that the fear was not for a convention reason.
3.3 These findings were “bound up” in the statutory formula pursuant to s.36(2)(a) and is not dispositive of the claim under section 36(2)(aa) of the Act.
The oral argument on behalf of the applicant made it clear that whilst the applicant accepted the findings of fact that the tribunal had made, his complaint was with the way in which the tribunal expressed its conclusions about his complementary protection claim. It was said that the findings of fact that had been made by the tribunal were made in the context of the applicant’s claim to protection for a convention reason (that is to say, they were made in respect of his claim under s.36(2)(a) of the Act) and that in then applying those findings to the question of whether the applicant was entitled to complementary protection, the tribunal confused and misapplied the relevant tests.
In my view, the tribunal did not misapply the relevant test. What the tribunal did was to make a number of findings of fact – or more to the point, indicate that it did not accept the evidence given by the applicant in relation to a number of the incidents that he described. The tribunal embarked upon its fact-finding exercise primarily in the context of its consideration of the applicant’s claim pursuant to s.36(2)(a) of the Act. But the findings of fact were, nonetheless, findings of fact about whether the particular incidents described by the applicant occurred and by and large the tribunal determined that the incidents described by the applicant did not occur.
The applicant complains that the tribunal’s decision does not make clear its reasoning process – the process by which it converted those findings of fact to conclusions about the applicant’s entitlement to complementary protection. But, in my view, the tribunal’s reasons are adequate for its purpose. Having made the relevant findings of fact, or more to the point, determined that many of the matters relied upon by the applicant were not made out on the evidence, the tribunal assessed the applicant’s claims against the factual matrix established by its findings of fact.
The tribunal was alive to the correct test. The tribunal was alive to the proposition that it needed to determine whether there was a real risk that the applicant would suffer significant harm if he was removed from Australia to Sri Lanka.
In circumstances where the tribunal had determined that the applicant had not suffered serious harm for the purposes of his Convention-nexus application, it is hardly surprising that the tribunal would rely on those same findings (to the extent that they were relevant) to determine his claim for complementary protection.
I accept the submissions for the first respondent that if the harms about which the applicant complained could not be serious harm for the purposes of his convention claim, then it is highly likely that those same harms would not be seen as significant harm for the purposes of his complementary protection claim.
The applicant suggested that the tribunal’s reasoning was in error because the tribunal had fallen into the trap that was identified by Driver J in SZFSK v the Minister for Immigration [2013] FCCA 7 at 97 where his Honour said:
[97] Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not. The use of language drawn from an irrelevant provision of the Migration Act at least creates confusion and may point to reviewable legal error. Further, the reliance by the reviewer at [75] on unspecified “findings set out above” is particularly problematic on its face, it appears to be a reference to all of the reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion (such as a finding of a lack of refugees convention nexus with harm suffered by the applicant).
In this case the tribunal has sought to clearly distinguish between the statutory provisions which bear on the complementary protection criterion and those which do not. It dealt with each of the claims separately under separate headings in its decision. The reference by the tribunal to the findings of fact “outlined in the preceding paragraphs” and “given the findings of fact outlined above” lacked the precision that Driver J suggested in SZFSK is desirable. I echo his Honour’s concerns that the use of such language leads to an imprecision which may be problematic, however, as Counsel for the first respondent pointed out, in SZTFZ v Minister for Immigration [2014] FCCA 1861 Driver J revisited his remarks in SZSFK and said this:
23. As Robertson J held in SZSGA v Minister for Immigration each case must depend on its own facts and, in particular, the reasons of the tribunal in each case. Further, SZSFK does not stand for the proposition that findings of fact made in the course of considering refugee claims cannot be relied upon for the purpose of assessing complementary protection claims.
24. Consistently with the principles set out in the previous paragraph it is not always necessary for the tribunal to give extensive reasons for the rejection of complementary protection claims. This is especially so where the facts giving rise to the complementary protection claims are the same as those upon which refugee claims are based. In particular:
(a) It is sufficient for the tribunal to refer to its previous findings where the effect of those previous findings was that the tribunal did not accept that the events which were said to give rise to the risk of harm actually occurred. This is consistent with the principle that the tribunal has no obligation to give consideration to a claim where the factual premise upon which the claim depends has been rejected, and;
(b) Where the tribunal, in the course of considering an applicant’s refugee claims makes a finding that there is not a real chance of the applicant suffering any harm by reason of a particular matter, it is open for the tribunal to rely on this finding when rejecting a complementary protection claim arising from the same facts. That is, a finding that there is not a real risk of any harm is sufficient to dispose of claims to fear both serious harm under s.36(2)(a) and significant harm under s.36(2)(aa).
Conclusion
The applicant in this case was not relying on any risk of harm or any claim in respect of his complementary protection claim that was not already part of his claim for Convention protection. The tribunal disposed of those claims and the tribunal was entitled to dispose of the complementary protection claim in the way in which it did.
The application for review does not raise any ground which reveals jurisdictional error on the part of the tribunal and it must be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Deputy Associate:
Date: 23 December 2014
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