CBS15 v Minister for Immigration

[2018] FCCA 456

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBS15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 456

Catchwords:
MIGRATION – Protection visa – whether Tribunal failed to consider claims – claim that the decision was legally unreasonable – no jurisdictional error – application dismissed.

Legislation:

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

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

SZTAL the Minister for Immigration [2016] FCAFC 69
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: CBS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2762 of 2015

Judgment of: Judge McNab

Hearing date: 10 May 2017

Date of Last Submission: 6 September 2017

Delivered at: Melbourne

Delivered on: 1 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the Respondents: Mr Aleksov

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The further amended application filed 26 April 2017 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 2762 of 2015

CBS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of a further amended application filed on 26 April 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 21 September 2015, which affirmed a decision of the delegate of the Minister not to grant the applicant a Protection visa (‘the visa’).

2. The applicant’s grounds of review are as follows:

   1.    The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.

   2.    The Tribunal fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.

   3.    The Tribunal fell into jurisdictional error in that it acted so unreasonably that no reasonable Tribunal would so have acted.

3. Each ground of review is copiously particularised and are in effect submissions and I will not reproduce all particulars. By way of example, the particulars under ground one are that:

   a.   The Tribunal considered that one reason for not accepting that the applicant was suspected of involvement with an LTTE financier was:

   “that this business relationship occurred at a time when the LTTE were able to operate openly in the north and all contact stopped in 2006 when the ceasefire broke down, it seems unlikely that the past business relationship would have become known to the authorities for the first time in 2009 or that it would have been of interest to the authorities in 2009…” (CB 228, [16])

   This did not take account of the applicant’s claim that he had met the supplier only once, in the course of legitimate fish dealing in 2005 to 2006, and that the end of the war was in 2009, which explains why in 2009, after taking control of the whole island, the authorities may have gone looking for the applicant in connection with his contact in 2005-2006 with a suspected LTTE financier;

   b.   The Tribunal made no finding on the applicant’s claim that he was burnt with iron rods – both as potential corroboration of the claim and also as putting him at risk because of his scarring attracting attention.

Background

1. The applicant is a national of Sri Lanka and is of Tamil ethnicity. He is Catholic.

2. The applicant’s claims for protection can be summarised as follows:

   a)He claims to fear harm by the CID, or other unidentified persons because he has been imputed to be a supporter of the Liberation Tigers of Tamil Eelam (LTTE). The applicant claims that while he looked after his father’s fish business during ceasefire between the LTTE and the Sri Lankan government in the period from 2005 to 2006, he purchased fish from a supplier by the name of ‘Mani’. He claims that in August 2009, four or five people came to his home and asked him if he knew Mani. He claims that he was abducted by the men, was taken blindfolded to a place a short distance away and was detained for five days, during which time he was abused physically and sexually and was beaten and burnt with metal rods.  He claims that members of the CID and/or other unidentified people went to his house after he left for Malaysia and questioned his father about his whereabouts. He also claims that a week after he returned to Sri Lanka in August 2010, the CID took him to CID headquarters in Colombo, questioned him about his time in Malaysia and confiscated his passport.

   b)He claims to fear harm because the LTTE or other unidentified persons have sought to extort money from him.

   c)He also claims to fear harm as a returnee, failed asylum seeker or person who left Sri Lanka illegally.

Tribunal decision

1. The Tribunal accepted that the applicant may have purchased fish from a supplier in Mulliativu named Mani in 2005 or 2006. However the Tribunal did not accept that the applicant was detained, interrogated and assaulted over five days in 2009 due to his business relationship with that person. In reaching its conclusion, the Tribunal took into account the following factors at [16]:

   a)the applicant had not provided any evidence to support his claim that Mani was an LTTE financier;

   b)the Tribunal found it unlikely that the applicant’s past business relationship would have become known to the authorities for the first time in 2009, particularly given that the alleged business relationship occurred at a time when the LTTE was able to operate openly in the north and that all contact stopped in 2006 when the ceasefire broke down;

   c)even if Mani had been a financier for the LTTE and a business relationship became known in 2009, the applicant and his father had a legitimate business and presumably they had business records demonstrating whether they paid by cash or money transfer; and

   d)the applicant’s father was associated with the UNP, a predominantly Sinhalese party that is unconcerned with Tamil issues, and had a business and political connections.

2. The Tribunal did not accept at [21] the applicant’s claim that members of the CID or other unidentified people went to his house after he had left for Malaysia. The basis of the Tribunal’s reasoning was that the applicant had given inconsistent evidence about the frequency of the visits in his written statement, protection visa interview and the hearing, with the frequency ranging from one to two. The Tribunal noted that the applicant had only mentioned that his mother was beaten at the hearing. In addition, the Tribunal reasoned that it was unlikely that the applicant would have been able to depart Sri Lanka (which is did lawfully on his own passport in 2009) if the authorities had suspected him of holding money for the LTTE. The Tribunal noted that his departure would have been known to the CID or other authorities, which would make it unlikely that they would visit his parents’ house to search for him.

3. The Tribunal also did not accept that the CID took the applicant to CID headquarters upon his return from Malaysia and questioned him, or that unidentified people questioned him at his home upon his return, or that his passport was taken. The Tribunal noted that the applicant had given inconsistent evidence about who had questioned him and where he had been questioned and considered that had the Tribunal wanted to confiscate his passport, they would have done so at the airport.[1]

   [1] Tribunal decision [24].

4. The Tribunal did not accept that the CID or unidentified persons were extorting money from the applicant due to the applicant’s inconsistent evidence that he had given Tribunal about when he was taken to the fourth floor, and about his money lending business and his business relationship with Christopher.[2] At [33] the Tribunal notes:

   …His initial evidence was that he started his own business; he referred to a person in a similar business who had disappeared; and he stated that Nimal told him about Christopher as a threat. His later evidence, at the hearing, is that Christopher was a friend of his father; that he worked in Christopher’s office; and that Christopher referred clients to him. In view of these inconsistencies, the Tribunal does not accept that the applicant started a money lending business or that he worked with Christopher. Further, the applicant could not provide Christopher’s full name and the Tribunal does not accept that he would not have known Christopher’s name if he had worked with him as claimed. The Tribunal accepts that Christopher was abducted but does not accept that the applicant had any relationship with Christopher. Information about Christopher’s abduction was available to the applicant from the media reports.

   [2] Ibid [34].

5. The Tribunal did not accept that unidentified people had been looking for him since he left Sri Lanka, or that these people had threatened and beat his parents or the applicant’s parents had received any calls threatening to kill the applicant.[3]  At paragraph [37], the Tribunal placed weight on the hospital discharge form which evidenced that his father’s injury was due to a fall.[4] The Tribunal noted that the applicant had not mentioned the ongoing calls to his parents until the second hearing and was not able to provide any detail about them.[5]

   [3] Tribunal decision [37] – [38].

   [4] Ibid [37].

   [5] Ibid [38].

6. The Tribunal concluded that the applicant did not face a real chance of serious harm or a real risk of significant harm in Sri Lanka from the CID, other authorities or unidentified people because of an imputed LTTE association or because he was being extorted.[6]

   [6] Ibid [39].

7. In relation to the applicant’s claim that he faced harm as a returnee to Sri Lanka, the Tribunal placed weight on DFAT country information and was satisfied that the applicant will not be subjected to any detention or interrogation on return to Sri Lanka other than standard questioning and procedures. It did not accept that the applicant faces a real chance of serious harm or real risk of significant harm at the airport or after he returns to his home.[7]

   [7] Ibid [48].

8. In relation to the applicant’s claim that he fears harm due to his illegal departure from Sri Lanka, the Tribunal did not accept that the applicant will be perceived to have an association with the LTTE which would cause him to be targeted whilst in custody.[8] The Tribunal found that the applicant spending a short period of time on remand on return to Sri Lanka did not give rise to substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka he faced a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment.[9]

   [8] Ibis [54], [56].

   [9] Tribunal decision [61].

9. The Tribunal concluded that the applicant did not face a real chance of serious harm now or in the reasonably foreseeable future because of his race, his imputed political opinion or his membership of particular social groups of money lenders, failed Tamil asylum seekers, Tamil returnees or persons who left Sri Lanka illegally, separately or cumulatively.[10]

   [10] Ibid [64].

10. The Tribunal was satisfied that the applicant did not meet the complementary protection criterion under s.36(2)(aa).

Finding

Ground One

1. Ground one seeks to put that the Tribunal did not take into account that the authorities may have gone looking for the applicant as a result of his contact in 2005 – 2006 with a suspected LTTE financier. This essentially involves an argument that the Tribunal should have formed a particular view as a result of the evidence before it. This is clearly merits review and there is no failure on the part of the Tribunal to consider the claims that were made by the applicant in relation to meeting an alleged LTTE financier in 2005 – 2006 in the course of business dealings. The applicant is cavilling with findings made as a result of a consideration of that evidence. There is no failure on the part of the Tribunal to consider relevant considerations or claims.

2. In in relation to ground (1)(b) that the Tribunal made no finding of the applicant’s claims that he was burnt with iron rods, at  paragraph [14] of the decision the Tribunal set out the applicant’s claims that four or five people come to his home and asked him if he knew Mani and then took him away and held him in a small dark room five days where they abused him physically and beat him with metal rods. At paragraph [16] the Tribunal held that it “did not accept that the applicant was detained and interrogated and assaulted over five days in 2009 because of this business relationship.” It concluded “[i]n these circumstances, the Tribunal does not accept that the applicant was suspected of holding LTTE money or that he was detained and tortured as he has claimed.”

3. There was no failure on the part of the Tribunal to consider the applicant’s claims. The Tribunal explicitly considered the claims but rejected them for the reasons set out in paragraph [16] of the decision.

Ground two

1. This part of the grounds effectively raised that the decision of the full court in SZTAL the Minister for Immigration [2016] FCAFC 69 was wrongly decided. By reason of the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 this ground must fail. There is no error on the part of the Tribunal in the way it considered the question of complimentary protection.

Ground three

1. The applicant alleges that the Tribunal fell into jurisdictional error in assuming that the applicant could document his financial dealings with the supplier who was an LTTE financier.

2. In paragraph [16] of the Tribunal's decision, the Tribunal observed that the applicant had not provided any evidence that Mani was an LTTE financier. Contrary to what was asserted in the particulars under the ground three, the Tribunal did not demand evidence that the applicant’s contact was an LTTE financier.

3. Particular (b) of ground three alleges that the Tribunal acted in a legally unreasonable way in presuming that the applicant could document, from business records, the financial dealings with Mani. The finding in paragraph [16] that the applicant could verify the source of funds for payments from a business conducted by the applicant and his father is set out in paragraph [16]. The Tribunal stated:

   Thirdly, even if Mani was a financier for the LTTE and even if the business relationship became known in 2009, the applicant and his father ran a legitimate business and payments went from them to Mani which presumably they could document from their own business records even if they paid by cash or money transfer.

4. No legal unreasonableness is demonstrated by that conclusion. There is no lack of evidence or intelligible justification for the view expressed by the Tribunal: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].

5. For these reasons the application shall be dismissed with the applicant to pay the first respondent’s costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 1 March 2018