CPJ15 v Minister for Immigration
[2018] FCCA 176
•29 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPJ15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 176 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether there was a Khawar issue in this case – whether the Tribunal dealt adequately with the complementary protection criteria where it simply referred back to its reasoning on the Convention grounds. |
| Legislation: Migration Act 1958, s.36(2) |
| Cases cited: Applicant A v Minister for Immigration and Ethnic Affairs [1998] INLR 1; (1997) 190 CLR 225; (1997) 142 ALR 331; (1997) 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4 |
| Applicant: | CPJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2678 of 2015 |
| Judgment of: | Judge Riley |
| Hearing dates: | 9 August, 6 September, 15 November and 22 December 2016 and 13 November 2017 |
| Date of last submission: | 13 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 29 January 2018 |
REPRESENTATION
| Advocate for the applicant: | In person on 9 August, 6 September, 15 November and 22 December 2016 |
| Counsel for the applicant: | Lisa De Ferrari on 13 November 2017 (pro bono) |
| Solicitors for the applicant: | None on 9 August, 6 September, 15 November and 22 December 2016 |
| Solicitors for the applicant: | Harwood Andrews on 13 November 2017 (pro bono) |
| Counsel for the first respondent: | Julia Lucas |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The application filed on 3 December 2015 and amended on 23 May 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2678 of 2015
| CPJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant’s claims
The applicant claimed in a statutory declaration lodged with his protection visa application that:
a)he was born in Batticaloa, Eastern Province, in Sri Lanka, on 5 May 1981;
b)he is of Tamil ethnicity and Hindu religion;
c)he is 31 years old and unmarried;
d)his parents and five of his siblings remain living in Eastern Province;
e)one of his brothers works in Qatar;
f)another brother died of malaria in 2002;
g)his sister died in 2005;
h)he completed schooling to year 11 in Batticaloa and then worked with his father doing farm work on their land;
i)his father lost a lot of their family land, which is located in Sinhalese areas, after the 1990 conflict in Sri Lanka;
j)there was an army camp about 300 metres from his family home;
k)his family was often harassed by the army;
l)the army was always watching Tamils to see who was helping the Liberation Tigers of Tamil Eelam (“the LTTE”) and are still doing this even though the war has ended;
m)his family has never had any LTTE connections;
n)he started his own vegetable wholesale business in 2004 or 2005, which gradually built up and was successful;
o)serious problems arose when paramilitary groups started demanding money from him;
p)they were the Karuna and Pillayan group, who are the Tamil Makkal Viduthalai Pulikal (“TMVP”);
q)if they asked for a small amount, he would pay;
r)if they asked for large amounts, he would ask to pay by instalments;
s)he has no choice but to pay as they had weapons and threatened to shoot him if he did not pay;
t)he made a police complaint in 2008 at his village police station but the police said they could not take his complaint and he could not go there with his problems any more;
u)the Sri Lankan army would demand vegetables from him which he had to give them;
v)in August 2008, he was asked by a paramilitary group for 10 lakhs which is about $7,000;
w)this was the largest amount of money they had ever asked him for;
x)in September 2008, the paramilitary group came looking for him at the market;
y)they asked his helper where he was;
z)one of the members of the paramilitary, who is known as Sri, shot and killed the applicant’s helper;
aa)many people saw the shooting but the perpetrator was not worried about getting into trouble because he was in a powerful group with connections to the government;
bb)the applicant stopped his work soon after the shooting and went into hiding;
cc)he went into hiding with his parents and his nephew;
dd)he moved with his parents and nephew to Kallaru;
ee)he decided to travel to Malaysia in early 2009 to seek protection;
ff)he intended to contact the United Nations High Commissioner for Refugees (“the UNHCR”) when he got to Malaysia, which he did;
gg)he was accepted as a refugee by the UNHCR in Malaysia in 2009;
hh)he had been waiting in Malaysia for three years for resettlement when he left in 2012 to come to Australia;
ii)it was not safe to live in Malaysia as a refugee waiting to be resettled;
jj)he was detained by immigration authorities whilst he was in Kuala Lumpur;
kk)he had no work rights;
ll)there was no financial assistance;
mm)he survived on assistance from welfare groups;
nn)Sri, the person who shot his helper, is now a Chairman in the Vellaaveli urban council;
oo)whenever Sri and others associated with him saw the applicant’s parents, they questioned them about the applicant’s whereabouts even though they knew he was in Malaysia;
pp)they forced his parents to give them his telephone number in Malaysia;
qq)they rang him there and said, you have escaped but you will have to come back one day and we will see you then, we are ruling Sri Lanka now;
rr)he is certain that they will seek him out if he returned to Sri Lanka and harm him because he refused to pay money to them;
ss)they target Tamil businessmen such as himself all over Sri Lanka;
tt)he fears Sri and his men will locate him if he returns to Sri Lanka;
uu)Sri is in government, so he has power to locate people; and
vv)Sri’s partner in the armed group is the Chairman of the ruling group in the district and is married to an army commander.
The Tribunal’s reasons
The Tribunal accepted that the applicant ran a successful business selling vegetables. The Tribunal also accepted that the applicant had been forced to pay money to paramilitary groups prior to his departure from Sri Lanka 2009. More particularly, the Tribunal accepted that:
a)members of these paramilitary groups had attempted to extort 10 lakhs from the applicant in mid-2008;
b)when the applicant refused to pay, members of the paramilitary groups shot and killed his employee, Jegan;
c)the applicant hid for three months following this incident before he left Sri Lanka; and
d)the killing happened in broad daylight in a busy marketplace.
However, the Tribunal did not accept that members of the paramilitaries had sought the applicant’s whereabouts since his departure from Sri Lanka, because the applicant’s evidence about these matters was vague and somewhat confused at times. The Tribunal did not accept that Sri and his associates had an ongoing interest in the applicant.
In the light of certain country information, the Tribunal did not accept that the TMVP or others would attempt to extort money from the applicant in the future to a degree that would constitute serious harm.
The Tribunal considered various other claims made by the applicant but ultimately did not accept that he faced a real chance of serious or significant harm if he were to return to Sri Lanka.
The proceedings in this court
The proceedings in this court have been rather tortuous. The matter first came on for final hearing on 9 August 2016. At that stage, the applicant was not legally represented. He told the court that his lawyer from the Refugee & Immigration Legal Centre (“RILC”) had advised him not to disclose in his claim that he had transported weapons for the LTTE.
I thought that this may have meant that:
a)there had been a fraud on the Tribunal, in that the Tribunal had been disabled from determining the application on the basis of the true facts;
b)the applicant might be barred from a successful protection visa application on the basis that he had assisted a terrorist organisation; and
c)there may be an issue relating to self-incrimination because of what the applicant had told the court.
The hearing was adjourned to enable the Minister to file submissions on those issues. When the matter returned to court, on 6 September 2016, it was noted that the lawyer from RILC would be put on notice, and orders were made for the applicant to have pro bono assistance. A barrister accepted the appointment but he later withdrew for ethical reasons.
On 15 November 2016, the matter returned to court. The applicant was again not legally represented. The RILC lawyer was represented by counsel, as was the Minister. The applicant gave evidence in chief on affirmation. The matter was again adjourned, to permit the RILC lawyer to prepare for cross-examination.
The matter returned to court on 22 December 2016. The applicant was cross-examined. Orders were made joining the RILC lawyer as an intervenor and again referring the matter for pro bono assistance for the applicant. The matter was otherwise adjourned.
Counsel and solicitors accepted the second pro bono referral. Orders were later made by consent providing for an amended application to be filed and for the RILC lawyer to be removed as a party to the proceedings.
The amended application did not raise any issue about the advice given by the RILC lawyer, and did not raise any issue about the applicant having transported weapons for the LTTE.
When the matter returned to court for a final hearing on 13 November 2017, the parties made it clear that none of them wished to pursue any issue relating to be applicant’s claim that he had transported weapons for the LTTE.
Ground of application
The ground of review in the application filed on 3 December 2015 and amended on 23 May 2017 is:
The decision of the Administrative Appeals Tribunal is vitiated by jurisdictional error.
Particulars
1.Failure to validly deal with the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act)
2.Failure to validly deal with the criterion in s 36(2)(aa) of the Act.
3.Failure to consider the applicant’s claim of a real risk of significant harm due to the personal animosity of Sri towards him.
Section 36(2) of the Migration Act 1968 (“the Act”) provides that:
A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
…
Particular 1
The applicant’s written submissions make it clear that this aspect of the ground of review concerns the applicant’s claim to fear persecution on the grounds that he is a member of a particular social group consisting of successful Tamil businessmen. The Minister conceded that the Tribunal accepted that the applicant made that claim.
The applicant argued that the Tribunal failed to appreciate that there was a Convention nexus when gangs attempted to extort money from successful Tamil businessmen and the state condoned or tolerated the action for a discriminatory reason. The applicant relied heavily on Minister for Immigration and Multicultural Affairs v Khawar & Ors (2002) 210 CLR 1; (2002) 67 ALD 577; (2002) 187 ALR 574; (2002) 76 ALJR 667; (2002) 23(6) Leg Rep 11; [2002] HCA 14, where, according to the headnote, Gleeson CJ, McHugh, Gummow and Kirby JJ held that:
persecution within the meaning of the Convention could exist where persecution or harm was inflicted otherwise than by the State, including infliction by private citizens, which was tolerated or condoned by the State authorities in a discriminatory manner.
However, the Minister argued that the Tribunal did not need to deal with the question of whether the state might tolerate or condone the actions of private actors because the Tribunal did not accept that the applicant, as a successful Tamil businessman, faced a real chance of harm that would rise to the level of persecution, at the hands of private or other actors.
In relation to this issue, the Tribunal said:
17.The Tribunal also notes the applicant’s oral evidence that his parents moved back to their family home a year after the shooting incident and have not been visited by paramilitaries or anyone else since, which indicates that neither the applicant or his family members are of ongoing adverse interest in relation to the shooting and/or attempt to obtain 10 lakhs (or any further money).
18.Given the Tribunal finds that Sri and his associates do not have an ongoing adverse interest in the applicant, or members of his family, it finds remote the chance that they would seek to seriously harm the applicant on return to Sri Lanka in relation to an extortion attempt and murder of his employee which took place seven years ago, prior to the end of the war.
19.Having accepted that the applicant was a successful businessman in the past, the Tribunal accepts that he may re-establish a successful business on return to Sri Lanka. It has considered if he faces a real chance of being targeted for extortion and/or serious harm at the hands of paramilitaries and/or the authorities on this basis on return to Batticaloa, given what it accepts of the applicant’s claims of past harm and profile in this regard as set out above. It has been submitted that the applicant faces a real chance of serious harm from paramilitary groups and/or authorities because of his membership of a particular social group of ‘successful Tamil businessmen’. When asked why he fears returning to Sri Lanka on this basis at the hearing, the applicant said his problem is that he cheated the paramilitaries in the past because he did not give them the money they had demanded. In her written submission to the Tribunal the representative refers to country information from a variety of sources as well as Canadian Refugee board decisions to argue that paramilitary groups still pose a threat and having not ceased their activities since the end of the war. The Tribunal has had regard to this information, although notes that the reports of paramilitary activity in the east primarily focus on the period in the lead up to the end of war and immediate aftermath (i.e. 2010-2011). The representative acknowledges in her submission that there is relatively limited detailed recent information about activities of paramilitary groups, however submitted that this does not necessarily indicate that abuses no longer occur as because, she argues, these groups enjoy complicity with, and impunity from, state forces, it is likely that many abuses are not reported or publicised. The representative submitted that the applicant’s past harm by paramilitary groups and treatment he received when he sought to make a police report are plausible and powerful indicators of the real chance that he will be subjected to such harm if returned to Sri Lanka.
20.As discussed with the applicant at the hearing, Australia’s Department of Foreign Affairs and Trade (DFAT) report that whilst some Tamil militant groups, such as the Eelam People’s Democratic Party (EPDP) and Tamil Makkal Viduthalai Pulikal (TMVP), have reportedly renounced paramilitary activities, they are aware of reports that they continue to be active in Sri Lanka, including in criminal activity. DFAT also assesses as follows:
·the number of incidents of extra-judicial killing, disappearances and kidnappings for ransom has fallen considerably since the end of the conflict.
·that whilst there have been incidents of kidnapping for ransom as well as those that appear to be politically motivated, no particular group has been the target and they do not appear to be ethnically-based.
21.The applicant said it may not happen generally and noted that the Sinhalese do not worry about whatever happens to Tamils. He said that paramilitaries joined with the military intelligence after the new government was formed (in January 2015) and there have been shootings in his area. Specifically a social worker was shot by a TMVP member near his house (located near an army camp) in 2015. He provided a Tamil Net article of the incident. The representative explained that whilst that article reports that the person who was harmed was politically active, the applicant wanted to provide it to the Tribunal because it speaks to the inactivity of the authorities when shootings take place.
22.Taking into account the information from DFAT set out above, as well as the Tribunal’s finding that although the applicant was targeted for extortion by paramilitaries in the past, and his employee was killed, this took place over seven years ago and the Tribunal does not accept his claims that there has been any follow up, specifically that his family members have been pursued, threatened or harmed by these paramilitaries since his departure from Sri Lanka. The Tribunal accepts that the applicant was a successful businessman in the past and on return may be so again, however the Tribunal considers remote the chance that if so the Karuna Group and/or TMVP would extort him again to a level that constitutes serious harm, even if the Tribunal accepts the applicant’s claim that they will assume he has been working in Australia and has money.
23.Given these considerations, the Tribunal is of the view that the chance the applicant would be of interest to paramilitaries such as the Karuna Group or TMVP or others or the authorities on return to Sri Lanka on account of his membership of a particular social group of ‘successful Tamil businessmen’ or any other reason in the foreseeable future and seriously harmed as a result is remote. His fears of being persecuted on this basis are not well founded.
(citations omitted)
I accept the Minister’s submissions on this point. That is, I accept that the Tribunal did not need to consider whether the State might condone or tolerate the actions of private actors, because the Tribunal did not accept that the applicant, as a successful Tamil businessman, faced a real risk of harm that reached the level of serious harm.
The applicant also said in relation to this aspect of the ground of review that the Tribunal did not deal with the possibility that Sri might have a personal animosity towards the applicant because of his previous failure to comply with Sri’s demand for money. However, the applicant did not claim that Sri had any personal animosity towards him. It is not an issue that arises on the materials. In any event, the Tribunal found that Sri and his associates did not have any ongoing adverse interest in the applicant.
The first aspect of the ground of review is without merit.
Particulars 2 and 3
The applicant treated particulars (b) and (c) of the ground of review as one. The applicant explained in his written submissions that the complaint concerned paragraphs 47 to 50 of the Tribunal’s reasons for decision, which are as follows:
47.In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Sri Lanka and the Tribunal therefore finds that Sri Lanka is the ‘receiving country’ for the purposes of s.5(1).
48.The representative submits that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, he will suffer significant harm in the form of arbitrary deprivation of life; and/or torture; and/or cruel and inhuman treatment or punishment; and/or degrading treatment or punishment.
49.The Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on the basis of his Tamil ethnicity, his actual or imputed political opinion, his membership of a particular social group of ‘young Tamil males’, or ‘young Tamil males from Eastern Province’ or ‘successful Tamil businessmen’, the fact that he has sought asylum in Australia, or registered with the UNHCR in Malaysia. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka.
50.For these reasons the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).
(citation omitted)
The applicant argued that the phrase, for any of those reasons, was a reference to the Convention nexus reasons. In my view, it does not assist to describe the reasons as the Convention nexus reasons. The Tribunal clearly meant by the words, for any of those reasons, for any of the reasons it had set out earlier in the paragraph, namely:
a)the applicant’s Tamil ethnicity;
b)his actual or imputed political opinion;
c)his membership of a particular social group of ‘young Tamil males’, or ‘young Tamil males from Eastern Province’ or ‘successful Tamil businessmen’; and
d)the fact that he has sought asylum in Australia, or registered with the UNHCR in Malaysia.
The applicant then argued that the phrase, For the same reasons, meant exactly the same reasons as had been given for rejecting the Convention based claims, including the Convention nexus. I do not accept that argument. The Tribunal clearly understood that it was considering complementary protection issues in paragraphs 47 to 50 of its reasons for decision. The Tribunal was saying, for example, that, for the reasons that it had not accepted that the applicant would face serious harm on the basis of being a Tamil businessman, it did not accept that he faced significant harm as a Tamil businessman.
The applicant then noted the following statement made by Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs [1998] INLR 1; (1997) 190 CLR 225; (1997) 142 ALR 331; (1997) 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4:
The persecution must be ‘for reasons of’ one of those categories. This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms.
The applicant noted that unreasoned antipathy would not meet the Convention criteria but could meet the complementary protection criteria. More particularly, the applicant argued that Sri’s unreasoned antipathy could meet the complementary protection criteria.
That is no doubt correct, in the abstract. However, the applicant did not claim that Sri had an unreasoned antipathy towards him and no such claim arose on the materials. Moreover, the Tribunal found that Sri did not have an ongoing adverse interest in the applicant.[1]
[1] Paragraph 18 of the Tribunal’s reasons for decision
The applicant argued that the finding that Sri did not have an ongoing adverse interest in him was confined to Sri not having an adverse interest in the applicant for reason of his membership of a particular social group consisting of successful Tamil businessmen.
However, that submission misreads the Tribunal’s reasons for decision. The Tribunal said, in paragraph 18 of its reasons for decision:
… Sri and his associates do not have an ongoing adverse interest in the applicant, or members of his family …
That is, the Tribunal found that Sri and his associates did not have an adverse interest in the applicant for any reason. In consequence of that finding, the Tribunal then said that:
… it finds remote the chance that they would seek to seriously harm the applicant on return to Sri Lanka …
for a particular reason nominated by the applicant.
That reason happened to be a Convention reason, but it could have been any reason. Relevantly, the basic finding was that Sri had no adverse interest in the applicant.
This aspect of the ground of review is not made out.
Conclusion
As the applicant’s ground of review has not been made out, the application must be dismissed. I will hear the parties on the question of costs.
The court thanks the pro bono solicitors and counsel for their assistance with this matter.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 29 January 2018
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