CAS16 v Minister for Immigration

[2018] FCCA 1

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAS16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka for various reasons – applicant not believed – whether the Tribunal failed to consider the applicant’s family links to the LTTE considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593

BVF16 v Minister for Immigration & Anor [2017] FCCA 2536

NAHI v Minister for Immigration [2004] FCAFC 10

Applicant: CAS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2014 of 2016

Judgment of: Judge Driver

Hearing date: 5 December 2017

Delivered at: Sydney

Delivered on: 5 February 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges of Hodges Legal

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 28 July 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2014 of 2016

CAS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 June 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of Sri Lanka born on 17 June 1975.[1]  He arrived on Christmas Island on 28 July 2012 as an unauthorised maritime arrival.[2]  On 1 August 2012, a Biodata interview was conducted[3] and, on 18 September 2012, an entry interview was conducted.[4]  On 16 January 2013, the applicant applied for the visa.[5]

   [1] Court Book (CB) 42

   [2] CB 112

   [3] CB 19-20

   [4] CB 1-18

   [5] CB 29-58

4. In support of the applicant’s visa application, the following matters were raised:[6]

   [6] CB 12; 60-65; 154-155; 191-194

   a)the applicant is of Tamil ethnicity and Hindu faith;[7]

   b)the applicant was forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) when aged 15 and was an LTTE cadre between 1991 and 1997.[8]  He was not involved in fighting, but rather spying activities.[9]  In 1992 and 1996, he was injured and still has scars from these incidents;[10]

   c)in 1998, the applicant moved to Uppu Maveli, Mullaitivu, and stayed until late 1998. Mullaitivu was an LTTE stronghold and the Sri Lankan Army (Army) would shell the area. A family member was killed by the shelling;[11]

   d)in August 2008, the applicant’s home was bombed and destroyed by a fighter jet. The applicant was badly injured and still has scars and shrapnel embedded in him.[12]  After the bombing, he was taken in for interrogation by the Criminal Investigation Department (CID);[13]

   e)in December 2008, the applicant and his family fled to Maathalan.  In May 2009, the area was taken over by the Army and they were taken to Vavuniya to an army camp, where they lived for a year.[14]  While living at the camp, the applicant was interrogated and tortured by the CID because they thought he was an LTTE fighter;[15]

   f)the applicant returned to Mullaitivu in May 2010.  After three to four months, he was called in for an interview by the Army and was beaten.  The Army continued to suspect the applicant of LTTE links because of his injuries and because he had lived in LTTE controlled areas;[16]

   g)the applicant was building a house on land near an Army base. The Army warned him not to do so, but the applicant complained and organised for the Grama Sevear[17] to speak to the Army on his behalf.  After this, the Army was searching for him and he feared they would kidnap and torture or kill him.[18]  The applicant went into hiding;[19]

   h)the applicant’s sister had recently disappeared, and the applicant’s family believes it is because the authorities discovered that she had been in the LTTE;[20]

   i)Tamils are discriminated against in Sri Lanka and the applicant does not know how he would live or find a job;[21] and

   j)on return to Sri Lanka, the authorities will suspect the applicant of being an LTTE supporter or against the Sri Lankan authorities, because he: is Tamil; is from the North; has been an LTTE cadre; has scars and injuries; made complaints against the Army in relation to his land; and has sought asylum overseas.[22]  The applicant also claimed that the Army and CID are still searching for him[23] and that he will be punished for having left Sri Lanka illegally.[24]

   [7] CB 60

   [8] CB 191-192

   [9] CB 192

   [10] CB 192-193

   [11] CB 60-61

   [12] CB 12; 61

   [13] CB 12

   [14] CB 61

   [15] CB 62

   [16] CB 62

   [17] The “head of the village”

   [18] CB 63

   [19] CB 63

   [20] CB 193-194

   [21] CB 65

   [22] CB 12; 64; 155; 194

   [23] CB 64

   [24] CB 64

5. On 4 February 2014, the delegate refused to grant the applicant the visa.[25]  On 3 March 2014, the applicant applied to the Tribunal for review of the delegate’s decision.[26]  On 2 February 2016, the applicant attended a hearing before the Tribunal, represented by a migration agent.[27]  A submission and a statutory declaration were provided to the Tribunal in advance of Tribunal’s hearing.[28]  Following the hearing, on 10 February 2016, an invitation to comment on or respond to information was sent to the applicant[29] and, on 2 March 2016, a response was provided,[30] along with a psychological assessment report pertaining to the applicant.[31]

   [25] CB 107-132

   [26] CB 133-139

   [27] CB 202-204

   [28] CB 154-194

   [29] CB 210-212

   [30] CB 217-222

   [31] CB 223-243

6. On 30 June 2016, the Tribunal affirmed the decision under review.[32]

   [32] CB 251-283

The Tribunal’s decision

1. The Tribunal set out the applicant’s claims,[33] noting that they had “expanded significantly over time”.[34]  The Tribunal accepted that the applicant’s home between 1998 and 2008 was in Mullaitivu, near an Army camp, and that the Army had killed his wife’s cousin in a shelling attack. The Tribunal also accepted that the applicant’s home was destroyed by a fighter jet in August 2008 and that the applicant was badly injured in the incident.[35]  It further accepted that the applicant moved to Maathalan in December 2008, because the war had escalated in his home area, that his father-in-law had been killed by shelling, and that the applicant and his family were taken by the Army to a camp in May 2009, where they stayed until May 2010.[36]

   [33] CB 255-259 [14]-[26]

   [34] CB 255 [14]

   [35] CB 260 [28]

   [36] CB 260 [29]-[30]

2. However, the Tribunal found “significant aspects” of the applicant’s claims and evidence to be “problematic”, which left the Tribunal unsatisfied about the truth of central aspects of the applicant’s claims.[37]

   [37] CB 260 [31]

3. In relation to the applicant’s claims flowing from the house he built near an Army base, the Tribunal found that the fact that the Army had caused no trouble to the applicant or his family was inconsistent with the applicant’s claim to fear harm from the Army on account of his having built the house and having challenged the Army about his presence on, and use of, that land.[38]  The Tribunal was also concerned by inconsistent evidence given by the applicant regarding if, and when, he and his family moved into the home.[39]  Further, the fact that the applicant had completed a significant amount of physical labour from 2010 onwards (including by building the house) undermined his claims that the injuries he suffered while in the LTTE, and from mistreatment by the Army and CID, made it difficult for him to do physical work and caused him to be discharged from the LTTE.[40]

   [38] CB 261 [33]

   [39] CB 262 [35]

   [40] CB 261-262 [34]

4. The Tribunal considered that the applicant’s evidence regarding his sister’s alleged recruitment by the LTTE, and subsequent disappearance, was “vague, speculative and unconvincing”. It did not accept that his sister had been recruited, or that she had disappeared as claimed.[41]

   [41] CB 264 [39]-[40]

5. The Tribunal observed that the applicant’s claims as to his involvement with the LTTE, the past harm he had suffered, and the reasons for suffering that harm had “evolved significantly over time”.[42]  It considered that the applicant’s failure to mention instances of significant mistreatment when initially identifying his fears on return to Sri Lanka (eg. in the Entry Interview), which he later relied on, was “significant and problematic”.[43]  Further, the Tribunal found that the applicant’s evidence that while living in the Vavuniya Camp he was permitted to voluntarily leave and return for up to seven days at a time was inconsistent with his claim that he was suspected of links to the LTTE, was of concern to the authorities, or was repeatedly and grossly mistreated by the authorities while in that camp.[44]

   [42] CB 264-265 [41]-[43]

   [43] CB 265 [45]

   [44] CB 266 [46]

6. The Tribunal did not accept that the applicant, or his sister, were forcibly recruited to the LTTE for any period of time.[45]  It did accept that the applicant’s wife’s brother was killed in LTTE service, but there was nothing to suggest his wife or her mother had an adverse profile as a consequence. It also accepted that the applicant was questioned by the Army and/or CID while living at the Vavuniya Camp, but did not accept that the applicant was physically mistreated as claimed, or singled out for any reason.  It also did not accept that the applicant was taken for interrogation by the Army or CID after leaving Vavuniya Camp, that he was interrogated or mistreated as a consequence of building his home next to an Army base, or that his wife or children have been approached by the authorities asking about him.[46]  Based on all the evidence before it, the Tribunal was not satisfied that, when the applicant left Sri Lanka in July 2012, he had any profile linked to the LTTE, or otherwise giving rise to a real chance of serious or significant harm.[47]

   [45] CB 269 [58]; 270 [61]

   [46] CB 269 [58]

   [47] CB 269 [59]

7. The Tribunal was also not satisfied that the applicant’s Tamil ethnicity, or his ties to Jaffna and Mullaitivu, gave the applicant any actual or imputed political opinion linked to the LTTE, or otherwise gave rise to a real chance of harm for any reason.[48]  Further, the Tribunal was not satisfied that the applicant faced a real chance of discrimination in employment, or in relation to any other opportunities, as a result of his ethnicity or for any other reason.[49]  It did not accept that the applicant’s scars would lead to him being imputed as being involved with the LTTE.[50]  It also did not accept that the applicant faced a real chance or real risk of suffering serious or significant harm on account of having departed Sri Lanka illegally.[51]  The Tribunal accepted that the Sri Lankan authorities would assume the applicant had sought asylum in Australia,[52] but was not satisfied that the applicant would face a real chance of serious harm on account of having sought asylum, including while at the airport (in Sri Lanka), or on return to his home area.[53] Finally, the Tribunal did not accept that the applicant faced a real chance of harm from the captain of the boat that the applicant travelled on to Australia.[54]

   [48] CB 271 [67]

   [49] CB 271 [67]

   [50] CB 271 [68]

   [51] CB 273-274 [75]-[79]

   [52] CB 274 [81]

   [53] CB 277 [89]-[90]

   [54] CB 278 [92]

8. In making its decision, the Tribunal took into account that the applicant had mental health conditions.[55] It noted the applicant’s evidence that he had suffered head injuries which impacted on his memory and comprehension,[56] and also considered a STARTTS[57] psychological report regarding the applicant that stated, among other things, that the applicant suffered from PTSD, as well as depression and anxiety, and explained that those factors could impact on the applicant’s comprehension, responses to questions and recollection of information.[58]

   [55] CB 253-255 [10]-[13]

   [56] CB 254 [10]

   [57] Service for the Treatment and Rehabilitation of Torture and Trauma Survivors

   [58] CB 254 [11]

9. The Tribunal concluded that, based on all the applicant’s evidence and claims, taken both individually and cumulatively, it was not satisfied that the applicant faced a real chance or risk of serious or significant harm in the reasonably foreseeable future.[59] Accordingly, the Tribunal was not satisfied that the applicant fell within ss.36(2)(a) or (2)(aa) of the Migration Act 1958 (Cth).

   [59] CB 278 [93]

The present proceedings

1. These proceedings began with a show cause application filed on 28 July 2016.  There are two grounds in that application, however Ground 1 was abandoned at the trial of this matter on 5 December 2017.  The remaining ground is:

   The tribunal committed error by failing to consider an integer of the applicant's claim.

   PARTICULARS

   (a) At paragraph 4 the tribunal noted that the applicant claimed to have family members who were in the LTTE;

   (b) The applicant claimed at paragraph 25(p) that his sister was forcibly recruited to the LTTE but the tribunal did not ultimately accept this claim;

   (c) The applicant claimed at paragraph 25(t) that his wife’s sisters husband was in the LTTE, surrendered after the war, was taken away and has not been heard of since;

   (d) The applicant claimed that he was recruited to the LTTE but the tribunal did not accept this claim.

   (e) The tribunal accepted at paragraph 58 that the applicant's wife's brother was “killed while in the service of the LTTE.”

   (f) The applicant claimed that his wife's sister's husband was a member of the LTTE.

   (g) The tribunal did not make a finding as to this claim;

   (h) The tribunal failed to consider the risk to the applicant as a person who had family connections to former members and combatants of the LTTE.

   (error in original)

2. The only evidence before me is the book of relevant documents filed on 1 September 2016. 

3. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions at the trial of the matter.

Consideration

1. At the outset of oral argument, the solicitor for the applicant conceded that the sole ground of review in this matter was essentially the same as Ground 2 advanced in BVF16 v Minister for Immigration & Anor,[60] which I rejected in a judgment immediately before the trial of this matter.  The particulars in the ground in this case are, however, not identical to those in BVF16 and the factual circumstances are not the same.  Each case must be considered on its merits. 

   [60] [2017] FCCA 2536

2. In the present case, the applicant’s central claims concerned his own alleged involvement with the LTTE, which the Tribunal rejected, and the alleged involvement of his sister, which the Tribunal also rejected.  I accept, as did the Tribunal at [4] of its decision,[61] that the applicant had also asserted that he had an “in-law” who was involved in some way with the LTTE and I accept that this claim was not rejected by the Tribunal.  There is some confusion about who that relative was.  At [20] of his second statement in support of his protection claim,[62] the applicant referred to his brother-in-law’s wife’s sister’s husband who apparently had been in the LTTE but surrendered after the end of the civil war (i.e. 2009 or later).  This claim was identified by the Tribunal at [25(t)].[63]  It appears that the applicant asserted before the Tribunal that his wife’s brother had been killed while in the service of the LTTE and around 1995 or 1996.[64]  These claims went essentially unremarked and undeveloped in submissions made to the Tribunal by the applicant’s representative.  This is understandable because the applicant’s focus was on his own alleged involvement with the LTTE and that of his sister, both of which claims were rejected by the Tribunal.

   [61] CB 252

   [62] CB 194

   [63] CB 259

   [64] CB 268-269 at [56]-[58]

3. Incidental though these claims were, I accept the applicant’s contention that he had raised claims based on the involvement of his relatives with the LTTE, apart from his sister.  In my view, however, the claims, such as they were, were considered by the Tribunal and were not overlooked.

4. In that regard, I agree with the Minister’s submissions.

5. The applicant asserts that the Tribunal failed to consider an integer of his claims, being “the risk to the applicant as a person who had family connections to former members and combatants of the LTTE” (particular (h) reproduced at [16] above). In the applicant’s submissions, it is alleged that the Tribunal failed to “cumulatively consider the familial connection of the applicant to his relatives in relation to the risk profiles”[65] and that the Tribunal “should have considered all of the family links that the applicant claimed to have with the LTTE”.[66]  For the following reasons, this ground is without substance.

   [65] applicant’s submissions at [g]

   [66] applicant’s submissions at [i]

6. On a fair reading of the Tribunal’s reasons, it is apparent that the Tribunal did consider the claims made by the applicant as to his, and his family’s, alleged links to the LTTE.  At [14]-[25][67] of its reasons, the Tribunal described in detail the applicant’s claims, including his and his family’s alleged links to the LTTE.  At [25], the Tribunal recorded, in detail, the applicant’s 2015 statutory declaration, being the document in which the applicant set out details of his and his family’s alleged involvement in the LTTE.[68]  The Tribunal also noted[69] that the applicant’s claims had changed significantly over time, including that, at the entry interview, he claimed that he and his family had no involvement with the LTTE at all.[70]

   [67] CB 255-259

   [68] see CB 258-259 [25](a)-(t)

   [69] at [14] and [27]

   [70] see also CB 256 [20]

7. Further, the Tribunal expressly considered the applicant’s claimed links to the LTTE, including those of his family members.  At [38]-[40],[71] the Tribunal rejected the applicant’s claim that his sister had been forcibly recruited by the LTTE and had subsequently disappeared. It also referred to the applicant’s evidence that, after his own discharge from the LTTE in 1997, he and his family had not been bothered or affected by the LTTE, and had no further contact with them at all.[72] The Tribunal also commented that the applicant’s evidence about his time living in the Vavuniya Camp (in 2009-2010) appeared inconsistent with a claim that the applicant was suspected of being linked to the LTTE.[73]  The Tribunal further found that the applicant had never been mistreated for any reason[74] and that his family members had not encountered any difficulties in their daily lives in Sri Lanka.[75]

   [71] CB 263-264

   [72] CB 263 [40]; 268 [55]

   [73] CB 266 [46]

   [74] CB 271 [68]

   [75] CB 271 [66]

8. At [48]-[59],[76] the Tribunal specifically dealt with the applicant’s claimed involvement and links to the LTTE, including those of his family.  At [55]-[56],[77] it specifically referred to the applicant’s evidence about his family members’ involvement with the LTTE. At [58], the Tribunal did not accept that the applicant or his sister were recruited by the LTTE.  It did accept that the applicant’s wife’s brother was killed while serving in the LTTE, but found that his wife or her mother did not have an adverse profile from this.  The Tribunal further did not accept that the applicant had been singled out for mistreatment or interrogation while living at Vavuniya Camp for any reason, that he had been interrogated or mistreated by the Army for any reason, or that his wife or child had been adversely approached by the authorities for any reason connected to the applicant. Importantly, at [59], the Tribunal stated that, “[b]ased on all the evidence before it and the considerations and findings” it had discussed, it was not satisfied that, at the time the applicant departed Sri Lanka (July 2012), he had any profile linked to the LTTE or which otherwise gave rise to a real chance or real risk of serious or significant harm.[78]

   [76] CB 266-269

   [77] CB 268

   [78] CB 269

1. Contrary to the gravamen of this ground, it is clear that the Tribunal did consider whether the applicant faced a real chance or real risk of harm on account of actual or perceived LTTE connections, including on account of his family members, and found that he did not.  I reject paragraph (g) of the applicant’s submissions, insofar as it alleges that the Tribunal “failed to cumulatively consider the family connection of the applicant to his relatives”.  The Tribunal’s reasons[79] make clear that its finding that the applicant did not have an adverse profile linked to the LTTE was based on “all the evidence before it and the considerations and findings [set out] above” (emphasis added), which included the evidence about and the Tribunal’s discussion of the applicant’s family’s LTTE connections. Also, any claim made by the applicant that he had an adverse profile specifically on account of his family’s LTTE connections (or the LTTE connection of a specific family member) was dealt with by the Tribunal’s broader finding that the applicant did not, at the time of his departure from Sri Lanka in July 2012, have an adverse profile linked to the LTTE.[80]

   [79] at [59]

   [80] see Applicant WAEE v Minister for Immigration (2003) 236 FCR 593, [47], indicating that a specific finding may be subsumed within, or rendered unnecessary by, a broader finding

2. Finally, the argument in support of this ground in the applicant’s submissions appears to proceed on the basis that the Tribunal was obliged to apply a “family link” profile contained in a UNHCR “Risk Profile Eligibility Guidelines”. No principled reason for this is identified. The Tribunal is not obliged to follow or apply any particular guidelines concerning the profile of a person who might face a real chance of harm on return to his or her home country.[81]  Whether a review applicant has a profile that results in a real chance or real risk of serious or significant harm remains a question of fact for the Tribunal alone, on the basis of the evidence before it. In this case, the Tribunal found, on the basis of all the evidence, that the applicant did not have an adverse profile because of links to the LTTE, including those of his family members.

   [81] see NAHI v Minister for Immigration [2004] FCAFC 10, equally applicable here

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       5 February 2018