BZAHT v Minister for Immigration

[2015] FCCA 299

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAHT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 299

Catchwords:
MIGRATION – Application for a Protection (class XA) visa – whether any demonstrated jurisdictional error – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 474(1), 476

Applicant: BZAHT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 833 of 2014

Judgment of: Judge Jarrett

Hearing date: 5 February 2015

Date of Last Submission: 5 February 2015

Delivered at: Brisbane

Delivered on: 17 February 2015

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 filed on 19 September 2014 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 833 of 2014

BZAHT

Applicant

And

MINITER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 19 September, 2014 the applicant applied to this Court to review a decision of a refugee review tribunal made on 18 August, 2014.  That decision affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (class XA) visa.

2. The grounds of review stated in the application are very general.  They are:

   The Refugee Review Tribunal has acted beyond its powers, including but not limited to failing to take into account relevant considerations and by taking into account irrelevant considerations or both.

3. When the matter came before me for its first court date on 27 October, 2014 I directed that by 24 November, 2014 the applicant file and serve an amended application upon which he intended to rely.  I listed the application for hearing on 5 February, 2015.  I made directions for the delivery of written submissions by both the applicant and the first respondent.

4. The applicant did not file an amended application, nor has he filed any submissions in support of his application.  I have written submissions filed on behalf of the first respondent.

Background

1. The applicant applied for a Protection (class XA) visa on 5 December, 2012.  His application was refused on 22 August, 2013 and soon thereafter he applied to a refugee review tribunal for a review of that decision.

2. He was invited to attend a hearing before the tribunal on 18 June, 2014.  He attended that hearing with a representative.

3. The tribunal decided the applicant’s review on 18 August, 2014 and affirmed the delegate’s decision to refuse a Protection visa to the applicant.

4. Before the delegate and the tribunal the applicant claimed that he was a person of Tamil ethnicity, that he had resided in the eastern provinces of Sri Lanka and that he had been and would be considered a member of the Liberation Tigers of Tamil Eelam.  He claimed that he would suffer serious harm amounting to persecution or significant harm at the hands of the Sri Lankan government authorities if he was to return to Sri Lanka. 

5. The applicant gave to the tribunal details of some specific incidents of violence and discrimination that were perpetrated against Tamils in his area.  He claimed that some threats were made to him personally and he spoke specifically of his fear of being identified as a LTTE member because he had scarring on his thigh that he claimed he sustained by being struck by shrapnel.

6. Before the tribunal, but not before the delegate, the applicant also claimed that his father had been involved in the LTTE and by reason of that connection, he would be suspected of having links to the LTTE.

7. The tribunal considered each of the applicant’s claims.  It referred to country information as set out in its reasons for decision.  That information came from the Australian Department of Foreign Affairs and Trade and from guidelines promulgated by the UNHCR in 2012.  It also referred to material published by the Canadian Immigration and Refugee Board, the Danish Immigration Service and material from the US State Department.

8. The tribunal accepted some of the applicant’s claims.  It accepted that:

   a)when he was very young his family had moved from one part of Sri Lanka to another because of problems for Tamils.  They later moved back;

   b)in 1998 he was injured by shrapnel in his thigh due to army shelling and that many Tamils were injured and killed in that attack;

   c)in 2007 he was involved in an incident with the army on his way home from school when an army truck had been attacked and the army retaliated by shooting at Tamils;

   d)he was physically attacked by a soldier who hit him in the face and kicked him to the ground.  He was verbally abused by the soldier who was speaking Sinhalese and which the applicant did not understand.  Others with the applicant were also attacked;

   e)the applicant saw other Tamils being beaten and the army shooting randomly;

   f)in 2008 the applicant was playing cricket in the park with a friend when his friend ran after a ball and a man on a motorbike arrived and threatened his friend by firing a gun.  The man was Tamil and he told the applicant and his friend that they should stop playing in the area.  The man was working with the army and the applicant saw him harassing other Tamils and shooting chickens;

   g)in 2010 the applicant was on his way home from work and was stopped by the police, they searched him and found some money on him and forced him to go to the shop and buy cigarettes for them.  However, the applicant claimed at the tribunal hearing that the shop owner came out and pleaded for the applicant to be released.  The police let him go and he did not have to spend his money;

   h)In 2011, the applicant started working for a company loading trucks and he sometimes travelled with his boss to various locations to deliver sand.  When they travelled to a particular part of Sri Lanka they were verbally abused and threatened by the army because they were Tamil.  However, no further action was taken against them;

   i)In 2012, the applicant was travelling with his boss and saw a dead Tamil man on the ground.  The applicant believes that he was killed because he was a Tamil.  The tribunal did not accept that it was the reason the person had been killed.

9. The tribunal also accepted that in 2008 a certain group of men from Sri Lanka abducted three boys and another person who lived in the applicant’s village.  There was another person killed in his village in 2009/2010.  One of his friends had a difficulty with the police because he was not carrying an ID card and he was detained by the police until his family brought it to the police station and he was released.  The tribunal accepted that the applicant had another friend who was detained and released by the police.  The tribunal accepted that there was an incident in 2011 in the local area where military personnel with swords came and assaulted Tamil boys. 

10. Whilst the tribunal accepted those incidents, it noted that the applicant had not claimed a direct personal association with any of those incidents and according to the tribunal “there is no reason to believe that he will be targeted by authorities or paramilitary groups” because of them.

11. The tribunal took up with the applicant that he had not disclosed his father’s alleged involvement with the LTTE prior to the tribunal hearing.  The applicant told the tribunal that he was scared of revealing that before he did as he feared something would happen to him and his family.  He said that his family had a grocery business and they used to give the LTTE provisions and he used to hand over the groceries.  He said his father was involved in the LTTE in 1998 and then in 2009 his father was imprisoned by the authorities for one month.  When the tribunal asked him why he had not made those claims previously, he said that “he had a mental agony about speaking about it and he thought it would jeopardise his application”.

12. The tribunal rejected the applicant’s claims that his father was involved in the LTTE.  The tribunal explained why it rejected the applicant’s claims in that regard in paragraph 52 of its reasons. 

13. After considering the country information and the applicant’s claims against that information, the tribunal was not satisfied that there was a real risk that the applicant would face serious harm or significant harm in any of the ways claimed by the applicant should he return to Sri Lanka.  The tribunal explained that it gave substantial weight to the assessment by the UNHCR of the circumstances for Tamils in Sri Lanka “as it presents an authoritative and independent overall analysis of the situation for Tamils and the human rights situation in Sri Lanka”.  The tribunal also gave substantial weight to the information to which it had regard from the Department of Foreign Affairs and Trade. 

14. The tribunal put the information in the country information to the applicant and asked for his comment.  In response the applicant and his representative referred to a news item in April, 2014 relating to forty-eight Tamils in the north east being abducted and another article where it was said that there was a lot of Tamils going to India to fight against the government.  The tribunal gave the applicant and his agent two weeks to submit copies of those articles to the tribunal, but they were not so submitted.

15. The tribunal did not accept that the applicant faces a real chance of persecution on account of his Tamil race, his membership of a particular social group, namely young male Tamils, or his family, or his actual or impugned political opinion or any combination of those matters. 

16. The tribunal considered the applicant’s claim that he would suffer serious harm amounting to persecution or significant harm at the hands of the Sri Lankan government or authorities should he return to Sri Lanka as a failed asylum seeker.  The tribunal determined that he would not. 

17. The tribunal considered the applicant’s claim that he would be detained upon his return to Sri Lanka because he left the country illegally.  The tribunal determined that whilst the applicant might be detained for a short time upon his return to Sri Lanka, and that he might be fined for his illegal departure, the tribunal did not consider that his imprisonment nor his fine would amount to a real chance of persecution on account of his illegal departure. 

18. The tribunal found that there were no substantial grounds for believing that there was a real risk that the applicant would experience the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka during his short term detention or afterwards resulting from the imposition of a fine.

19. The tribunal concluded that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there was a real risk that he will suffer significant harm of the purposes of s.36(2)(aa) of the Migration Act1958.

Consideration

1. Despite being given the opportunity to do so, the applicant has not particularised his ground of review.  At the hearing before me the applicant was unable to identify any relevant considerations that the tribunal did not take into account.  He was similarly unable to identify any irrelevant considerations that the tribunal had taken into account.

2. The applicant was concerned to be able to provide to me documents which he explained supported his claims about the harsh treatment of Tamils in Sri Lanka.  But as I explained to the applicant, unless that material was before the tribunal, it was not something that this Court could take into account.  He confirmed that the material he wished to place before me was material that he had not given to the tribunal.

3. The applicant bears the onus of establishing that the tribunal’s decision is affected by jurisdictional error.  In my view, he does not discharge that onus.  I accept the first respondent’s submissions that the tribunal undertook a fulsome assessment of the evidence.  It did so with reference to the country information that it set out clearly in its reasons for decision.  As the first respondent points out, the choice and weight to be accorded to such information is a matter for the tribunal. 

4. Having regard to the tribunal’s reasons for decision, it is apparent that the tribunal did not overlook any material that the applicant wished to place before it.  Nor can I determine that the tribunal has taken into account anything that was irrelevant to its determination.

5. The first respondent submits, and I accept, that the applicant’s difficulty with the decision of the tribunal is that he does not agree with it.  His submissions to me in the course of the hearing confirmed that this application is intended by him to be a merits review.  That is something that this Court cannot undertake.

Conclusion

1. I am not satisfied that the tribunal’s decision is attended by jurisdictional error. It is a privative clause decision for the purposes of s.474(1) of the Migration Act and is not reviewable under s.476 of the Act. The application must be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       17 February 2015