CGT15 v Minister for Immigration
[2016] FCCA 2749
•27 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGT15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2749 |
| Catchwords: MIGRATION – Judicial review – serious harm s.91R of the Migration Act. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 430 |
| Cases cited: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 SXCB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 102 WZARV v Minister for Immigration and Border Protection [2015] HCA 22 VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 |
| Applicant: | CGT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2446 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 14 September 2016 |
| Date of Last Submission: | 14 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 27 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr McBeth |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ in the nature of certiorari be issued to quash the decision of the Second Respondent dated 5 October 2015.
A writ in the nature of a mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law.
The First Respondent is to pay the Applicant’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2446 of 2015
| CGT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a young Tamil male from the northern area of Sri Lanka. He is a Hindu. He claims to fear persecution because of the Criminal Investigation Department (“CID”) questioning him about connections with the Liberation Tigers of Tamil Eelam (“LTTE”) and making threats to kill him.
The applicant filed an amended application for judicial review relying on four grounds which are set out below.
1. The Tribunal misapplied the law relating to the definition of persecution under the former section 91R of the Migration Act 1958, in that it failed to find that repeated threats to kill and an ongoing threat to the applicant’s liberty could constitute serious harm, contrary to former section 91R(2)(a) of the Migration Act, and that it failed to find that significant physical harassment in the form of repeated detention and interrogation without charge could constitute serious harm, contrary to former section 91R(2)(b) of the Migration Act;
2. The Tribunal failed to consider an integer of the applicant’s claim, namely that the applicant feared for his life on the basis of the repeated threats of the CID to kill him;
3. The Tribunal failed to consider a claim of the applicant, namely the claim that he faced persecution as a member of a particular social group, being a group of young men, over 18 years of age, of Tamil ethnicity living in the northern regions of Sri Lanka;
4. The Tribunal made an error of law in its misinterpretation of the Sri Lankan Prevention of Terrorism Act, and the subsequent findings of the Tribunal were based on that erroneous interpretation.
At the beginning of the hearing the applicant’s counsel indicated that ground four is no longer pressed. He also indicated that the affidavit annexing the transcript was not being relied on.
The applicant argued ground two first followed by grounds one and three. The first respondent adopted the same order. It is convenient for the Court to adopt that order as well.
Ground Two
Ground two focuses on the applicant’s claim that CID officers made threats to kill him. At the time of the Tribunal hearing section 91R(2) of the Migration Act 1958 (Cth) (“Migration Act”) applied which said:
(2) Without limiting what is serious harm for the purposes of
paragraph (1)(b), the following are instances of serious harm for
the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person’s
capacity to subsist;
(e) denial of access to basic services, where the denial threatens
the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the
denial threatens the person’s capacity to subsist.
The applicant claimed in his statutory declaration at Court Book (“CB”) 74 that his troubles with the CID and the EPDP started in April 2012 when the EPDP took him into custody and questioned him about LTTE connections. He also said that the CID attended his home and asked him to come in for questioning. He says he was again questioned about LTTE links.
He says they attended his home again asking for him so he went to the CID office and was questioned again. He says he was forced to handle a gun and that if he did not operate it they would kill him.
He says that the third time he was called in for questioning they again threatened to kill him. He left Sri Lanka on 27 July 2012.
At CB [78] the Tribunal accepted the applicant’s evidence that he was questioned three times but went on to say that it was significant that he was released each time and found that the three occasions of questioning did not amount to serious harm.
The applicant points to the fact that the Tribunal did not mention the threats to kill. Section 91R(2)(a) includes a specific reference to threats to kill as an example of serious harm. The applicant complains that whilst the Tribunal identified this aspect of his claim at [10] of its decision, it did not return to it and did not make a finding of fact with respect to the threat to kill. The applicant argues that this amounts to a failure to consider an integer of his claim.
The parties agree that the Court in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] HCA 60 (“VBAO”) sets out the correct test which requires an assessment of the threat as to the likelihood of harm rather than the communication of a threat. The communication might be evidence supporting the likelihood of harm but the communication of the threat is not the test. The Tribunal must assess whether the likelihood of harm exists.
Section 430 of the Migration Act sets out the Tribunal’s obligations with respect to the Tribunal’s decision and written statements. The applicant argues that the Tribunal failed to comply with s.430(1)(d) which requires the Tribunal to refer to material or evidence on which the findings of fact were based.
In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”) at [52] the Tribunal received post hearing submissions which provided updated country information. The Tribunal referred to having received the submissions but not to specific material which was an integer to the applicant’s claim. The applicant says the threats to kill were an essential integer of his claim. Given this the inference is that the Tribunal did not consider it because if it did, it would have referred to it in its reasons. The applicant relies on a combination of the comments in MZYTS and s.430(1)(d). The Court said in MZYTS that it is not enough to refer to the claim. It must assess and evaluation the claim. The Tribunal did not do this. The Tribunal did not actively engage in assessing the material before it.
The respondent argues that the circumstances in MZYTS were quite different to the circumstances here. Additionally, that it is only necessary to make a general finding that there was no serious harm and it can be inferred that the threats to kill will considered as part of that claim. The respondent says that a fair reading of the reasons as a whole shows that the Tribunal was aware of the applicant’s claim when it found that he had not suffered serious harm. In this regard at [47] of Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (“WAEE”) is relevant. The applicant relies on [49] and says the same thing happened in this case by reciting the claim but not considering the evidence. The applicant says this lead to the conclusion that the Tribunal failed to consider the claim. The threat to kill went directly to one of the factors listed in s.91R.
The respondent says when the reasons are read as a whole it clearly had the claims in its mind. He refers to [70] of the Tribunal’s decision and says it is an important finding that the applicant exaggerated his claim where he argues that the authorities have found him to be a LTTE supporter or sympathiser.
Paragraphs 47 and 49 of WAEE read as follows:
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
[49] The material put before the Tribunal on the son’s intermarriage issue and the contentions advanced in respect of it went directly to the criterion for the grant of a protection visa set out in s36. While the Tribunal recounted the appellant’s claims on this issue early in its reasons, its failure to consider the evidence and the contention leads to the inescapable conclusion that it failed to address the issue.
The Tribunal finds at [73] in 2009 the applicant had been assessed by the CID as not having links to the LTTE. He was granted a passport.
At [75, 76 and 78] the Tribunal deals with the 2012 claims. At [75] the Tribunal did not accept the applicant’s claim that the CID became interested in him again because he was born in an LTTE controlled area and was of recruitment age.
At [76—78] the Tribunal deals with the issue of detention and refers to the CID’s powers to detain but finds that in light of the country information the fact that he has been questioned and released he does not have the profile the applicant claims and does not accept the applicant’s explanation as to why he was released. In the last sentence of [78] the Tribunal says it is not satisfied that “in the applicant’s circumstance, including the prior instances of questioning” that the applicant was subjected to serious harm. The respondent argues that this shows that the Tribunal rejected that the threats were made or that there was any intention they would be carried out.
With the respect to the threat to kill the Tribunal needs to consider, not the threat being communicated in the past but whether there is a likelihood of that consequence being realised. The respondent refers to [53] where it refers to the law and says that is clear that the Tribunal has the applicant’s claim in its mind.
In my view whilst this could indicate the Tribunal did have the applicant’s claims as to death threats, this is far from certain. In light of the specific references in s.91R and the fact that the death threats were squarely raised by the applicant it is not safe to conclude that it did have this in its mind when making the material finding of fact. It is clear that the threats to kill went to a material fact before the Tribunal. Whilst the Tribunal referred to the questioning, it did not refer to the Applicant’s claim that the nature of the questioning escalated culminating into threats to kill.
I do not accept the first respondent’s argument that this finding was subsumed in findings of greater generality. The issue of the threats to kill was a critical aspect of the applicant’s claim. It is not safe to infer that the Tribunal considered the threats to kill because it summarised the claim at [10]. The Tribunal failed to exercise its statutory duty to review.
Ground two is established.
Ground 1
Under this ground the applicant argues that the Tribunal failed to apply the correct test with respect to serious harm.
The applicant says there is implied coercion in the fact the CID required him to attend for questioning. The respondent argues that this is not detention. The applicant points out at [78] of the reasons and says the Tribunal accepted the element of detention by finding that he was released from custody each time.
Again the test is set out in VBAO.
The applicant argues that an important part of his claim was that he was told he would be required for questioning again and that it was getting worse each time and that this ongoing threat was a threat to his liberty. The applicant complains that the Tribunal did not did not make a qualitative assessment of the fear of threat to liberty.
The other aspect of this claim is physical harassment.
The applicant said that whilst he accepts detention does not necessarily amount to serious harm, the Tribunal was required to engage in a qualitative assessment which the Tribunal failed to engage in.
The High Court in WZARV v Minister for Immigration and Border Protection [2015] HCA 22 at [51] said “[t]emporary detentions of a person fall naturally within the description of physical harassment, and so readily within s91R(2)(b).” As the Tribunal found that the applicant has been held of questioning it needed to consider whether this physical harassment amount to serious harm. The Tribunal failed to make that assessment.
The respondent argued that presenting voluntarily for questioning cannot amount to detention. It is not apparent from the Tribunal’s reasons that it did turn its mind to and engage in this aspect of the Applicant’s claim. This amounts to a failure to carry out its statutory task.
Ground 1 is established.
Ground 3
The applicant complains that the Tribunal failed to consider his membership of a particular social group. The applicant says that whilst he did not use the phrase ‘social group’ it was clear from his entry interview that he identified that he was a male over 18 from an LTTE controlled area. If not expressly made, it clearly arose from the evidence. In support of this contention the applicant relies on NABE v Minister for Immigration and Multicultural Affairs (No.2) [2004] FCAFC 263 at [63].
The applicant argues that his claim is based on his membership of a particular social group was broader than a fear based on his profile. Again the respondent argues that it was not necessary for the Tribunal to specifically address this because of the broader general findings about the lack serious of risk of harm.
The applicant says the Tribunal did not consider the membership of a particular social group and that this claim was not considered by the Tribunal resulting in its failure to discharge its statutory function to review. What the Tribunal did was rather than considering it as a claim about an imputed political opinion.
The respondent says that the applicant did not clearly raise a claim based on membership of a particular social group. The respondent argues that the tribunal dealt with the issue of causation first as s.91R requires it to do. The respondent referred to SXCB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 102. In any event the Tribunal dealt with the substance of the applicant’s complaint.
The respondent says the Tribunal did deal with this aspect of the applicant’s claim as evidenced by [75] where it refers to the applicant’s claim that he was of interest to the CID in 2012 because he was from an LTTE controlled area and was of recruitment age. The Tribunal goes on to make a finding that the applicant does not have the profile that would cause him to be of interest to the CID.
The respondent says the first issue is to determine whether or not the membership of a particular social group arises. The tribunal dealt with the claim as to having an imputed political opinion. That was the source of the harm. The fear of persecution must be based on the particular social group. It is not enough that it be a ‘grab bag’ of various characteristics. The respondent says the fear of harm was based on an imputed political opinion which the Tribunal dealt with.
The respondent says that claim does not arise but even if it did, The Tribunal dealt with it. Once the respondent made the findings that the applicant’s past experience and future fears did not amount to serious harm and that the applicant did not face a real risk of harm in the future. The respondent relied on [47] of WAEE.
At [36] of the Tribunal’s decision the Tribunal says he asked the applicant to confirm his grounds for protection. The applicant said he feared persecution being a Tamil and being of his age and area of origin as well as his fear that he will be imputed with a pro-LTTE opinion.
I accept the respondent’s submissions that the Tribunal considered the substance of the applicant’s claims. This aspect of his claim is not in the same category as the threats to kill claim.
Ground three is not made out.
Conclusion
As the Applicant has succeeded on two out of three grounds the case should be limited for redetermination by a differently constituted Tribunal.
The first respondent should pay the applicant’s costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 27 October 2016
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