CGS15 v Minister for Immigration

[2017] FCCA 2734

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGS15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2734

Catchwords:
MIGRATION – Consideration of Country Information – whether the Tribunal considered the applicant’s claims – merits review – application dismissed.

Legislation:

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

Cases cited:
NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: CGS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2445 of 2015

Judgment of: Judge McNab

Hearing date: 23 October 2017

Date of Last Submission: 23 October 2017

Delivered at: Melbourne

Delivered on: 23 October 2017

REPRESENTATION

The Applicant in person

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The proceeding be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2445 of 2015

CGS15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(delivered ex-tempore)

1. The applicant filed an application on 2 November 2015, which was subsequently amended on 4 May 2016, seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 14 October 2015 under the Migration Act 1958 (Cth) (‘the Act’). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Protection visa. The applicant made a statutory declaration in support of his application for refugee status.[1] The Tribunal decision at [20] – [26] summarises the grounds set out in that statutory declaration.

   [1] Court book [73] – [77].

Background

1. The background in this matter has been summarised by the first respondent’s outline of submissions filed on 16 October 2017. I reproduce that summary from [3] – [9] below, subject to elaboration.  

2. The applicant is a citizen of Sri Lanka. He arrived in Australia on 20 June 2012 and applied for the visa on 15 November 2012.

3. The applicant’s claims to be owed protection were set out in a statutory declaration that accompanied the visa application. He was interviews in relation to his claims on 8 April 2013 and his representative sent the Department submissions on 22 April 2013.

4. A delegate of the Minister refused to grant the visa on 2 August 2013.

5. The applicant applied for review to the Tribunal on 6 September 2013. The applicant was represented in relation to the review by a registered migration agent. The applicant appeared before the Tribunal on 18 December 2014 to give evidence and his agent sent submissions on his behalf on 28 November 2013 and 19 January 2015. On 14 October 2015, the Tribunal affirmed the decision under review.

6. In summary the applicant claimed to fear harm on the following bases:

   a)an imputed political opinion (being a supporter of the political party ‘Muslim Congress’ and a member of Parliament from that party);

   b)an imputed political opinion (being a supporter of the LTTE);

   c)there was an incident in 2012 as outlined in the Tribunal decision at [27]:

   In 2012, three men came to the applicant’s garage and asked whether the applicant and his cousins could do work for them in Puthukkudiyiruppu in Northern Province in a coconut orchid. The applicant negotiated fees and accepted the job. Whilst working there, army officials came and told him he was working there illegally. The applicant was taken to the Vallipuram camp and kept there for 1.5 days. He was slapped and watched his cousins receive a beating. The applicant was told that the men who hired them had been arrested. The applicant was made to sign a statement detailing his dealings with the men and then was allowed to go home. The applicant arrived in Australia by boat in June 2012 (‘the 2012 Incident’);

   d)his ethnicity (being a Tamil);

   e)his religion (being a Muslim);

   f)his status as a failed asylum seeker; and

   g)his illegal departure from Sri Lanka.

7. The Tribunal accepted a number of aspects of the applicant’s account, such as that he was a Tamil Muslim, that his family had been displaced from their village on account of fighting between the LTTE and the government and that he had suffered harm in the past on account of his activities in support of a particular politician at [30] – [31]. The Tribunal accepted that the events referred to as the “2012 Incident” had occurred at [42].

8. However, having appraised country information and the applicant’s circumstances, the Tribunal was not satisfied that the applicant faced a relevant risk of harm for the reasons that he advanced.

Grounds of review

1. The applicant, by his amended application filed 4 May 2016, sets out five grounds of review.  They are that: 

   (1)The Tribunal fell into jurisdictional error by not assessing my integer claims cumulatively being a Tamil Muslim with a political persuasion and suspected with LTTE involvements.

   (2)The Tribunal fell into jurisdictional error by not assessing my claim against my religion being a Muslim.

   (3)The Tribunal accepted that I have suffered serious harm and significant harm in the past due to my work as a politician, but then applied the wrong test and found that the chances of such harm happening to me in the reasonably foreseeable future is remote (paragraph 32 of its decision at CB 257).

   (4)The Tribunal accepted that I was physically assaulted by Sinhalese men outside a cinema and threatened with death due to my political work but did not assess whether this could happen again in the event of my return to Sri Lanka and thereby failed to assess this integer claim.  (paragraph 31 of its decision at CB 257).

   (5)The Tribunal accepted the 2012 incident but did not assess whether the harm suffered by me in that incident would amount to serious and/or significant harm to trigger protection obligations (paragraph 42 at CB 258 & 259) and thereby fell into jurisdictional error.

2. At the hearing of this application, the applicant filed with the Court an outline of written submissions, which is a typed three page document.  I also note that the applicant was assisted at the hearing by an interpreter from Tamil to English.  The outline of submissions raises, in broad terms, that the decision is affected by illogicality or irrationality, particularly in relation to the finding whereby the Tribunal accepted that the applicant had suffered serious harm and significant harm in the past due to his work for a politician, but then made a finding that he would not suffer the same harm in the reasonably foreseeable future. 

3. The applicant also raised, by his written outline of submissions, that the decision of the Tribunal was illogical or it misapplied the test in relation to the question of reasonable apprehension of serious harm in the way that it dealt with DFAT country information and in particular, the finding that there was a low risk of violence. It was said that this in fact did not mean that the risk in the future is not real or it is remote. 

4. In oral submissions, the applicant made submissions that because he was a member of the minority, that is, a Tamil and a Muslim in Sri Lanka, there is no guarantee for his life.  He raised that he had recently seen on Facebook reports that Buddhists were oppressing Muslims and that as recently as two weeks ago, cars and property of Muslims had been affected. 

5. He also raised the treatment of the Rohingya people in Burma as an example of what might happen to him if he was to return to Sri Lanka.  He also stated that there had been a misunderstanding of the facts by the Tribunal in relation to its decision at paragraph [43] of its decision that, after an incident in January 2012, he had continued to reside in his home area until May 2012.  The applicant stated that in fact he had moved after the incident in January 2012.

6. For the reasons set out below, none of those matters satisfy the Court that there has been any jurisdictional error by the Tribunal in this matter.  In my view, the decision of the Tribunal deals with each of the claims that were raised by the applicant before it, and the findings that were made by the Tribunal were open to it for the reasons that it gave. 

Finding

Ground one

1. The applicant raises a claim that the Tribunal failed to consider a claim that he was at risk of harm because he was a Tamil Muslim with political persuasions and suspected of LTTE involvement. 

2. At paragraph [30] of the Tribunal decision, the Tribunal accepted that the applicant was a Tamil Muslim and had in the past worked for a prominent politician.[2] It did not accept that he was suspected of LTTE involvement.[3]  At paragraph [31], the Tribunal noted: 

   The applicant has been consistent about his claims to have provided security to the member of parliament (who became a Minister in the Sri Lankan government and leader of the Muslim Congress) and I accept that he did this and other activities (such as putting up posters) for this politician in 2004.  I accept there was an incident in 2004 when the applicant and others were putting up posters in Kalpitiya when they were attacked by rival Sinhalese opponents who wanted them to support their party and that the applicant was injured and taken to hospital and required 11 stitches and had a wrist dislocated. 

   [2] Tribunal decision [31] – [32].

   [3] Ibid [35] – [36].

3. However at paragraph [32] the Tribunal found that although he had suffered significant harm in the past due to his work for the politician, the applicant had told the Tribunal that he did not support the politician or the Muslim Congress and his involvement with the politician had occurred a long time ago in 2004.  The Tribunal also noted that following the incident in 2004 the applicant continued to live and work in the Puttalam area for periods and was not harmed by those who were involved in the 2004 incident. 

4. The Tribunal has set out, in clear terms, the basis of its decision in relation to the claims.  In respect of a claim that the Tribunal had failed to consider the matters raised by the applicant on a cumulative basis, the Tribunal, at paragraphs [71] – [72] of its decision makes specific reference to the applicant’s individual circumstances and to that information and the independent country information cumulatively. 

5. Having regard to the structure of the decision where the Tribunal has referred to each of the bases of the claim and dealt with each of those claims, the reference at paragraph [71] is not simply a recital, but it is a statement of what the Tribunal did in relation to considering the claims. 

Ground two

1. In my view, there is no error demonstrated in the manner in which the Tribunal has approached this question.  At paragraphs [49] – [52], the Tribunal considered the applicant’s claims by reference to country information and to the individual circumstances of the applicant.[4]

   [4] Tribunal decision [51].

2. The complaint made by the applicant by its written submissions that there was some preference given by the Tribunal to the country information provided by DFAT does not demonstrate jurisdictional error.  The preference given by the Tribunal to particular country information is a matter that is within the power of the Tribunal.  The fact that it might prefer certain information over other information is not an indication of error.[5] 

   [5] NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] – [13].

Grounds three and four

1. The Tribunal at paragraphs [31] – [32] explained its reasons why the episodes of past harm on account of political activity did not provide a basis for forming a view that there was a real risk of serious harm.  As stated earlier, the Tribunal at paragraph [32] made reference to the fact that the applicant had told the Tribunal that:

   a)he did not support the politician who he worked for or the Muslim Congress;

   b)the past events had happened a long time ago; and

   c)he had continued to live in the area and had not suffered any further harm from people who were involved or associated with the people who had caused him harm in 2004.

2. In my view, it was open for the Tribunal to conclude as it did, and it is not apparent that the Tribunal applied the wrong test when considering the risk of future harm or when it concluded that the risk of future harm was remote. 

Ground five – whether the Tribunal erred by not assessing whether the harm the applicant suffered in the “2012 Incident” amounted to serious or significant harm

1. The Tribunal at paragraph [42] considered the particular circumstances surrounding the 2012 incident and found at [43] that because the applicant did not claim that either he or any of his cousins had suffered any ongoing adverse attention after the event, the applicant was not of adverse interest to the police due to this incident, and the chance that he would be seriously or significantly harmed by the police or anyone else on account of it was remote. The Tribunal did consider the claims made by the applicant in relation to the “2012 Incident” and the applicant’s challenge to the finding is an exercise in impermissible merits review.[6]

   [6] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

2. I note that the applicant raised in his oral submissions at the hearing that he had in fact not remained in the same area and moved around after the January 2012.  However, the Tribunal had before it details of the applicant’s address, which was submitted by the then representatives of the applicant, indicating that he had remained in the same area between January 2012 and May 2012 when he left Sri Lanka.[7] 

   [7] Court book, 67.

3. The applicant’s written outline of submissions submitted that the Tribunal erred by accepting that because there was a relatively low number of incidents of violence and therefore a low risk of political or religious violence, that that had meant that the chances of that happening in the future were not real or remote.

4. At paragraph [50] of the Tribunal’s decision, the Tribunal accepted the country information from DFAT and then compared that information to the applicant’s circumstances when he was in Sri Lanka and in particular, that the applicant did not claim that he or his family has had any problem as a result of their faith. At paragraph [51] the Tribunal then concluded that because of the applicant’s individual circumstances, there was not a real risk of serious harm in the future. It is not apparent that there has been any misapplication of the test under s.36(2)(a) of the Act in the way that the Tribunal has approached consideration of the issue.

5. In my view, there is no error demonstrated by the Tribunal’s decision both in respect of the matters raised in the applicant’s amended application, the matters raised in the applicant’s outline of written submissions or the oral submissions raised at hearing.  In those circumstances, I dismiss the amended application.

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

Date: 8 November 2017