CJM15 v Minister for Immigration
[2019] FCCA 3151
•8 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJM15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3151 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant a Protection visa – whether Tribunal considered submissions or addressed issue to the effect that the applicant fell within one of the risk profiles identified by the UNHCR Eligibility Guidelines – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 SZVZV v Minister for Immigration and Border Protection [2017] FCA 954 |
| Applicant: | CJM15 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 658 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 28 October 2019 |
| Date of Last Submission: | 28 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges of Hodges Legal |
| Solicitors for the First Respondent: | Mr L Dennis of Minter Ellison |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 658 of 2017
| CJM15 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The principal question that arises on this application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal), when affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa), failed to consider, or properly consider, a claim that the applicant fell within a particular risk profile identified in guidelines issued by the United Nations High Commissioner for Refugees (UNHCR Eligibility Guidelines).[1]
[1] The full title of the UNHCR Guidelines is “UNHCR Eligibility Guidelines for Assessing International Protection Needs of Asylum-Seekers from Sri Lanka”, and it is dated 21 December 2012 (see CB104, fn.2)
To be in a position to consider this, and the other issues that arise, it will be necessary to set out the applicant’s claims for protection, the submissions the applicant made to the Tribunal that relied, or which the Tribunal ought reasonably have considered relied, on the contention that the applicant falls within the relevant risk category identified in the UNHCR Eligibility Guidelines, and the Tribunal’s reasons for affirming the delegate’s decision.
Claims for protection
The applicant is a national of Sri Lanka and is of Tamil ethnicity. He comes from a village on the Jaffna peninsula, although for periods during the civil war the applicant and his family lived in an area south of the Jaffna peninsula. The applicant claimed that in around 2001 his older sister was abducted by the Liberation Tigers of Tamil Eelam (LTTE) when she was returning home from school, and she was killed in fighting three months later. The applicant also claimed that he was forced to undergo training by the LTTE for around ten days in 2008; that in April 2012 he was questioned by the Sri Lankan Army and the CID (Criminal Investigation Department) on two occasions where he was accused of being a member of the LTTE. The applicant left Sri Lanka illegally by boat in 2012.
In submissions dated 30 September 2013 made to the delegate, the applicant’s representative relied on the UNHCR Eligibility Guidelines having “identified ‘people suspected of certain links with the Liberation Tigers of Tamil Eelam’, where such links go beyond previous residency in an area controlled by the LTTE, as a group at risk of persecution”.[2]
[2] CB104
The delegate in his decision referred to the UNHCR Eligibility Guidelines, noting they “list a number of risk profiles which, depending on the individual circumstances of the case, may give rise for international refugee protection”, and that “[o]ne such risk profile is persons suspected of certain links with the LTTE”.[3] The delegate also set out the notion of “certain links” as explained in the following passage from the UNHCR Eligibility Guidelines:[4]
[3] CB165
[4] CB165
[P]revious (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:
1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
2) Former LTTE combatants or “cadres”;
3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
Finally, there are the submissions dated 17 March 2015 the applicant’s representative provided to a differently constituted Tribunal.[5] Under the heading “Imputed LTTE support” the applicant’s representative submitted that, if returned, the applicant will be “suspected of involvement with the LTTE due to the cumulative effect of”, among other things, his sister being “a known LTTE combatant who died in service of the LTTE”, and that the applicant falls within the particular risk profile of persons with links to former LTTE combatants or cadres identified by the UNHCR Eligibility Guidelines.[6]
[5] CB191
[6] CB196
Hearing before Tribunal
There is no transcript of the hearing before the Tribunal. In its reasons for decision, however, the Tribunal set out the substance of what was said at the hearing. Of relevance to the issues I am required to decide is the Tribunal’s having put to the applicant particular items of country information. Two items are relevant. The first is information contained in the “DFAT Thematic Report – People with Links to the Liberation Tigers of Tamil Eelam” dated 3 October 2014 (DFAT Report). The Tribunal put to the applicant that the DFAT Report advised that Tamils in areas affected by the civil war in Sri Lanka were likely to have provided a low-level of material support to the LTTE, and there was a low risk of Tamils in this situation being detained or prosecuted.[7]
[7] CB387, [37]
The second relevant item of information the Tribunal put to the applicant is the decision of the United Kingdom Upper Tribunal (UKUT) determination in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG (UKUT determination).[8] In its reasons for decision, the Tribunal records the following:[9]
I put to him [that is, the applicant] that a tribunal in the United Kingdom . . . had made a decision in July 2013 in relation to asylum-seekers returning to Sri Lanka. It had found that the Sri Lankan authorities’ approach was based on sophisticated intelligence both as to activities within Sri Lanka and activities outside Sri Lanka. I put to him that, apart from the claim which he had very recently made that he had been involved in fighting for the LTTE for over a year, he had not claimed to have been involved in any activities which would have attracted the attention of the Sri Lankan Government. I put to him that he did not come within any of the categories of people who the tribunal in the UK had said would be at risk of persecution on return to Sri Lanka.
[8] [2013] UKUT 319 (CB387, [38])
[9] CB387, [38]
Tribunal’s reasons
The Tribunal accepted the applicant’s sister was in the LTTE and was killed in 2001; in 2008 the LTTE trained the applicant for eight to ten days; and that the applicant and his family had lived in an area that was under the control of the LTTE.[10] The Tribunal, however, did not accept the applicant was involved in fighting for the LTTE.[11] The Tribunal relied on the applicant’s not having claimed until August 2016 that he had fought for the LTTE, being after a differently constituted Tribunal had rejected his claims for protection.[12] The Tribunal also relied on the applicant’s evidence that in 2009 he and his family left the Jaffna peninsula and went to PRI Welfare Centre, being an internally displaced persons camp, yet the applicant was released from the centre rather than being sent to a rehabilitation centre. The Tribunal was of the view that, if the applicant’s claims of fighting for the LTTE were true, the applicant would not have been released from the PRI Welfare Centre, but would have been sent to a rehabilitation centre.[13] The Tribunal also did not accept the applicant’s claim that he had been stopped, questioned, required to report to an army camp, and accused of involvement with the LTTE before the applicant left Sri Lanka in 2012. The Tribunal relied on the Sri Lankan authorities’ not having detained the applicant.[14]
[10] CB393, [57]
[11] CB389, [46]
[12] CB389, [46]
[13] CB391, [50]
[14] CB391, [51]
On the basis of these findings, the Tribunal concluded as follows:[15]
I do not accept on the evidence before me that either [the applicant] himself or any other member of his family has been of any interest to the Sri Lankan authorities since the end of the civil war or that, as has been submitted, [the applicant] has been imputed with a political opinion in support of the LTTE based on his older sister’s involvement, his own training with the LTTE for eight to ten days in 2008 and that [sic] fact that he and his family lived in an LTTE-controlled areas.
[15] CB391, [51]
The Tribunal considered the applicant’s other claims, and, for reasons it is not necessary to set out here, it did not accept them. The Tribunal, therefore, affirmed the delegate’s decision.
Grounds of application
The applicant relies on three grounds of application stated in the amended application. As summarised by Mr Hodge, who appeared for the applicant, ground 1 claims the Tribunal applied the “wrong test” when assessing the risk of harm the applicant would face if he returns to Sri Lanka; ground 2 claims the Tribunal made a jurisdictional error by failing to consider a claim and a submission; and ground 3 claims the Tribunal failed to consider an issue that arose before it. Mr Hodges said, however, that all three claims arise “from the same factual matrix”, that factual matrix being that one of the applicant’s claims was that he feared harm because of his association with his sister who, the Tribunal accepted, fought for the LTTE and was killed doing so.
I propose to consider each ground in turn.
Ground 1 of the amended application
Ground 1 is as follows:
The Tribunal applied the wrong test in considering the applicant’s imputed links to the LTTE.
PARTICULARS
a.At [1], the applicant claimed that his older sister was abducted by the LTTE in 2001 and was killed in fighting three months later.
(i)The applicant provided evidence, at [6], of his sister’s death by producing a photograph of her memorial.
(ii)At [11], the applicant claimed that his sister’s involvement in the LTTE and her death created a risk to him. This risk was described as being due to his family link, not due to perceptions of him as being a supporter or member of the LTTE. The proper analysis of the applicant’s claims involved risk to the applicant due to his sister’s involvement in the LTTE, a fact which was known to the Sri Lankan authorities. It does not involve only an analysis of risk due to perceptions of the applicant’s LTTE sympathies or activities.
b.The Tribunal did not properly assess the risk to the applicant, should he return to Sri Lanka because of his family links to his sister who died while fighting for the LTTE.
c.The Tribunal referred to the risk profiles published by DFAT.
Ground 1 makes three claims. The first claim relies on a distinction between a claim of harm based on the applicant’s sister’s involvement in the LTTE and her death, and a claim based on the applicant’s being perceived to be a supporter of the LTTE. This part of ground 1 claims that the Tribunal considered the risk of harm to the applicant based on his being perceived to be a supporter of the LTTE, but it did not consider the claim based on the applicant’s being the brother of a woman who was involved with the LTTE and was killed.
There are two difficulties with this part of the applicant’s claims. The first is that in his claims for protection the applicant claimed that his relationship with his sister would give rise to a perception that he, like his sister, was a supporter of the LTTE. That is apparent from the applicant’s representative’s written submissions dated 17 May 2015 to which I have already referred. Under the heading “Imputed LTTE support” it was submitted that the applicant will be “suspected of involvement with the LTTE due to the cumulative effect of”, among other things, his sister being “a known LTTE combatant who died in service of the LTTE”, and that the applicant falls within the particular risk profile of persons with links to former LTTE combatants or cadres identified by the UNHCR Eligibility Guidelines.[16] That reflects the claim the applicant made in the statement that accompanied his application for a Protection visa. The applicant there said (emphasis added):[17]
I fear that the army suspects that I might have been a supporter of the former LTTE because I am a Tamil from an area that was once controlled by the LTTE and I have received training from the LTTE and my sister fought with the LTTE.
[16] CB196
[17] CB73, [23]
The second difficulty with this part of ground 1 is that the applicant does not articulate how the applicant’s having a sister who died while fighting for the LTTE could reasonably have been considered by the Tribunal to give rise to a risk of harm to the applicant other than by giving rise to the risk that the authorities would perceive or suspect the applicant to be a supporter of the LTTE. It is difficult to imagine how the applicant’s sister’s being involved with the LTTE could give rise to risk of harm to the applicant other than by the perceptions that fact would create in the minds of the authorities whom the applicant feared would harm him.
The second claim ground 1 makes is that the Tribunal referred to risk profiles published by DFAT, but it did not consider the UNHCR Eligibility Guidelines or attempt to apply them. There are two difficulties with this claim. First, it implies, although Mr Hodges informed me the applicant did not intend so to contend, that the Tribunal was obliged to consider and apply the UNHCR Eligibility Guidelines. The Tribunal was not obliged to apply the UNHCR Eligibility Guidelines. It is a species of country information, and “the choice and the assessment of the weight of such material were matters for the Tribunal”.[18]
[18] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, at [13]
Second, although it is true the Tribunal did not refer to, or apply, the UNHCR Eligibility Guidelines, I do not accept the Tribunal did not consider them. As I have already noted, at the hearing before it,[19] the Tribunal put to the applicant that he did not come within the categories of people whom “another tribunal in United Kingdom” had said would be at risk of persecution on return to Sri Lanka; and as I have already noted, that was a reference to the UKUT determination. In that determination, however, the UKUT did consider, and it considered in some detail, the UNHCR Eligibility Guidelines, and in particular the suitability of the “risk profiles” contained in the passage I have reproduced above. After setting out the same passage the UKUT said:[20]
The effect of that passage is that these categories remain fact-specific. We shall set out later, in the light of the wide-ranging expertise we have heard and read, what we consider to be the fact-specific risk groups, some of which overlap with the general categories set out in the UNHCR guidelines generally and at paragraph A.1 in particular.
[19] CB387, [39]
[20] [2013] UKUT 319, at [290]
After it considered evidence and submissions, the UKUT identified the following classes of persons at risk of persecution in Sri Lanka:[21]
The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a)Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b)Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d)A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
[21] [2013] UKUT 319, at [356]
Rather than not considering the UNHCR Eligibility Guidelines, therefore, the Tribunal accepted the UKUT’s consideration of those guidelines, and adopted the UKUT’s, rather than the UNHCR’s, classification of the persons at risk of persecution in Sri Lanka. The Tribunal made no jurisdictional error by proceeding in this way. The UNHCR Eligibility Guidelines is a species of country information, as is the UKUT determination. Both “the choice and the assessment of the weight of such material were matters for the Tribunal”.[22]
[22] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, at [13]
The third claim ground 1 makes is that the Tribunal did not properly assess the risk to the applicant because of his family links to his sister who died while fighting for the LTTE. In his oral submissions, Mr Hodges submitted that the exercise the Tribunal ought to have engaged in, but failed to engage in, is the exercise described by the delegate, namely, to consider whether the existence of the links identified by the UNHCR Eligibility Guidelines apply, depending on the individual circumstances of the case. I do not accept that submission. The Tribunal was aware the applicant claimed he feared harm because his sister fought and died for the LTTE; and it considered that claim having regard to the matters it identified, the most significant of which the Tribunal considered to be the applicant’s having been released from an internal displacement camp, rather than referred to a rehabilitation centre.
The applicant relies on the judgment of Bromwich J in SZVZV v Minister for Immigration and Border Protection.[23] His Honour there found that the Tribunal failed to consider a submission or an issue that arose on the material before it, that the applicant fell within the UNHCR Eligibility Guidelines.[24] Given I have concluded that the Tribunal in the case before me did consider, but did not adopt the UNHCR Eligibility Guidelines, the circumstances of the case before me are distinguishable from those Bromwich J considered in SZVZV.
[23] [2017] FCA 954
[24] [2017] FCA 954, [23], [25], [47]
For these reasons, ground 1 fails.
Grounds 2 and 3 of the amended application
Grounds 2 and 3 are supported by the same particulars that support ground 1. Ground 2 is as follows:
The Tribunal committed jurisdictional error by failing to consider a submission by the claim by the Applicant to the effect that the Applicant fell within the UNHCR Eligibility Guidelines Sri Lanka 2012.
Ground 3 is as follows:
The Tribunal committed jurisdictional error by failing to consider an issue which clearly arose on the information before it, that being whether the Applicant did fall or may have been perceived to fall within the UNHCR Eligibility Guidelines Sri Lanka 2012.
I have already found the Tribunal considered whether to apply the UNHCR Eligibility Guidelines, but that it accepted the UKUT’s consideration of those guidelines, and adopted the UKUT’s, rather than the UNHCR’s, classification of the persons at risk of persecution in Sri Lanka. I have also found the Tribunal considered the applicant’s claims that he faced risk of harm because he had a sister who fought and died for the LTTE. It follows, therefore, that I do not accept the Tribunal failed to consider a submission the applicant fell within the UNHCR Eligibility Guidelines or to consider as an issue the question whether the applicant fell within those guidelines.
Grounds 2 and 3, therefore, also fail.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed. Mr Dennis, who appeared for the Minister, and Mr Hodges agreed that costs should follow the event, and that, if the Minister were to succeed, I should set those costs in the amount of $5,600. I propose also to make an order that the applicant pay the Minister’s costs set in the amount of $5,600.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 8 November 2019
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