CRC15 v Minister for Immigration

[2017] FCCA 2485

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRC15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2485

Catchwords:
MIGRATION – Consideration of weight given by the Tribunal to particular country information and matters within the Tribunal’s discretion – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5(1)

Cases cited:

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZTAL vMinister for Immigration and Border Protection & Anor [2007] HCA 34

Applicant: CRC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2758 of 2015

Judgment of: Judge McNab

Hearing date: 10 July 2017

Date of Last Submission: 10 July 2017

Delivered at: Melbourne

Delivered on: 16 October 2017

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the Respondents: Ms Lukas

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2758 of 2015

CRC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an amended application filed 13 June 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 2 December 2015 (‘the Tribunal decision’). The Tribunal affirmed a decision of the delegate of the first respondent not to grant the Applicant a protection visa.

2. The amended application lists three grounds of review:

   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, or information.

   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. For the reasons set out below the applicant’s grounds of review have not been established.

Factual Background and Tribunal Decision

1. The applicant is a national of Sri Lanka from Nedunkerny Division, Vavuniya District, North Eastern Province. He is of Tamil ethnicity. He departed Sri Lanka by boat in June 2012 and was living in the Mullaitivu district prior to his departure from Sri Lanka.

2. The applicant made a number of claims for protection, including by reason of his race (Tamil, from the Northern province); imputed political opinion, being a perceived supporter of the Tamil National Alliance (TNA) and the Liberation Tigers of Tamil Eelam (LTTE); his membership of a particular social group, being a failed asylum seeker in Sri Lanka; and his illegal departure from Sri Lanka.

3. The applicant’s claim to fear harm on the basis of his pro-TNA and LTTE political opinion allegedly arose because one of the applicant’s older brothers, SP, was forcibly recruited by the LTTE in 2008 from their family home in Vavuniya. The applicant gave evidence to the Tribunal that SP fought for the LTTE against the government in the Kilinochchi district, that he surrendered to government forces in approximately May 2009 and that he was detained at a camp in Omanthi, Vavuniya until February 2011 when he was released by the army.[1]

   [1] Tribunal decision [13].

4. The Tribunal accepted that SP was an LTTE member from 2008 to 2009 and he was detained by the army following the end of the war, until February 2011.[2] It also accepted that SP was beaten and tied up by the army during that time.[3] However, the Tribunal did not find that the applicant faced a real chance of serious harm from the authorities on his return to Sri Lanka based on his brother’s past involvement with the LTTE.[4] Rather, the Tribunal found that there was only a remote chance that the applicant would be seriously harmed on return to Sri Lanka based on his brother’s previous involvement with the LTTE.[5] Having regard to recent country information, the basis for the Tribunal’s finding on this point was that the situation in Sri Lanka had changed dramatically since the end of the war.[6] It also made reference to DFAT’s assessment that Tamil civilians who were not members of the LTTE, including those that may have provided a low level of support to the LTTE, may be monitored by Sri Lankan authorities but are at a low risk of being detained or prosecuted.[7]

   [2] Ibid [15].

   [3] Ibid.

   [4] Ibid.

   [5] Ibid [19].

   [6] Tribunal decision [18].

   [7] Ibid.

5. In relation to the applicant’s claims surrounding the applicant’s other brother, S, the Tribunal accepted that S had worked for the LTTE (despite not being an actual member of the LTTE) in one of their offices in Vavuniya, an area controlled by the LTTE, distributing rice and fertiliser.[8] However, based on the applicant’s oral evidence that S had not experienced problems from authorities in Sri Lanka as a result of his involvement, the Tribunal found that there was only a remote chance that the applicant would be imputed with a pro LTTE political opinion.[9]

   [8] Ibid [20].

   [9] Ibid.

6. The Tribunal accepted that the applicant and his family lived in an internally displaced persons camp for approximately one to one and a half years after the war but found that the applicant was not of any particularly adverse interest to the authorities over the general interest of young Tamil males during this period.[10] The Tribunal did not accept that the applicant would be seriously harmed by the authorities as a result.

   [10] Ibid [21].

7. In relation to the applicant’s claim to fear harm arising from his brother, S being a local government member for the TNA in Vavuniya district and assisting his brother during the 2011 election campaign, the Tribunal accepted that S was a local councillor representing the TNA in Vavuniya district in a local election in 2011.[11] Despite raising concerns about the vague nature of the applicant’s oral evidence before the Tribunal, it accepted that the applicant may have helped his brother in the lead up to the election by putting up posters, canvassing votes and handing out pamphlets and that in that role the applicant may have received some verbal threats from political opponents, primarily to dissuade him in his campaign efforts for the TNA. The Tribunal noted that on the applicant’s own evidence, he put up the posters regardless and did not experience problems as a result.

   [11] Ibid [26].

8. The Tribunal did not accept that the applicant experienced problems from the CID based on the following factors:

   a)the inconsistencies between the applicant’s oral evidence and his statutory declaration;

   b)the uncertainty surrounding why the applicant would be of particular interest to the CID and not his brother; and

   c)the applicant’s evidence before the Tribunal that none of his family members in Sri Lanka, including those who reside in Vavuniya, had experienced any problems from the authorities in relation to their purported interest in the applicant and/or because of S’s status as a TNA politician.[12]

   [12] Tribunal decision [28] – [31].

9. In relation to the applicant’s claim to fear harm on the basis of his Tamil ethnicity, the Tribunal considered relevant country information which disclosed that being of Tamil ethnicity did not on its own warrant international protection. In light of this information and the end of the war in May 2009, the Tribunal did not accept that the applicant faced a real chance of persecution on return to Sri Lanka.[13] The Tribunal did not find that the applicant faced a real chance of serious harm on return to Sri Lanka on the basis of his imputed political opinion (LTTE) for any reason submitted separately or in combination.[14]

   [13] Ibid [40] – [44].

   [14] Ibid [47].

10. The applicant also claimed to fear harm on the basis of his membership of a particular social group, being a failed asylum seeker. The Tribunal had regard to the detailed submissions of the representative for the applicant and relevant country information and accepted that the applicant was likely to face questioning at the airport upon his return to Sri Lanka in relation to his movements abroad and potential links with the LTTE.[15] However, the Tribunal did not accept that the applicant faced a real chance of persecution on return to Sri Lanka.[16] The basis for this finding was that the applicant did not have any actual or perceived association with the LTTE which would cause him to be targeted by the authorities on return as an LTTE suspect of serious concern.[17] The Tribunal accepted that upon the applicant’s return to Vavuniya, his arrival would be noted and he may be questioned by the Sri Lankan authorities. Ultimately the Tribunal did not accept that there would be a real chance that the applicant will be targeted for harm by Sri Lankan authorities on account of his Tamil ethnicity and having sought asylum in Australia, or for any other reason.[18]

    [15] Tribunal decision [56].

    [16] Ibid.

    [17] Ibid.

    [18] Ibid [57].

11. In relation to the applicant’s claim for protection that he faced a real chance of persecution on return to Sri Lanka because he departed the country illegally, the Tribunal accepted that he was likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act).[19] The Tribunal referred to DFAT information which indicated that the risk of torture or mistreatment for the majority of returnees is low, including for those suspected of offences under the I&E Act.[20] It accepted that prison conditions in Sri Lanka were generally poor and noted reports of mistreatment of Tamil and Sinhalese prisoners in Sri Lankan prisons.[21] However, the Tribunal found that as the applicant did not have actual or perceived association with the LTTE which would cause him to be a target in the prison system, there was only a remote chance the applicant will be targeted and harmed in the context of a very brief stay in remand pending bail.[22]

    [19] Ibid [59].

    [20] Ibid [66].

    [21] Ibid [67].

    [22] Ibid.

12. The Tribunal concluded that the applicant did not face a real chance of persecution on return to Sri Lanka for any Convention reason. It also found that the applicant did not meet the complementary protection criterion under s.36(2)(aa).

Grounds of Review and Consideration

1. The applicant’s grounds of review are copiously particularised. By way of example, the particulars under ground one provide 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, or information.

   a) The applicant’s representatives provided submissions and evidence with detailed reference to diverse independent sources, and the Tribunal had material from other sources also, to the effect that there was a culture in Sri Lanka of serious harm, including torture, being inflicted by the authorities on persons including prisoners, and not necessarily specifically targeted at known political opponents but aimed at people simply as prisoners or as Tamil prisoners. (references to court book omitted).

   Despite having this material, although the Tribunal considered whether there might be harm targeted at the applicant as a Tamil, or as a person with “an actual or perceived association with the LTTE” (CB 280, [67]) or the TNA (CB 270-273, [22]-[35]), it failed to consider whether there was a real chance of the applicant suffering persecution, or a real risk of him suffering significant harm, as the result of the culture of serious harm, including torture, being inflicted by the authorities on persons including prisoners, although it found that he would be for at least a short time in detention or prison as a returned failed asylum seeker who had left Sri Lanka illegally. (CB 277-278, [55]-[57]; CB 280, [66]-[67])

   b) Further or in the alternative, the Tribunal failed to consider and to determine why it should reject as unreliable reports, from various sources, of torture of prisoners, returnees and failed asylum seekers in Sri Lanka, so that it should conclude that it “does not accept that the applicant faces a real chance of persecution on this basis on return to Sri Lanka…” and that there was no “real risk that the applicant will face torture, or other instances of significant harm, either during his questioning at the airport or during any period he spends on remand.” (CB 277. [52]; CB 280, Decision Record [67])

   c) The Tribunal considered the question of complementary protection, but it erred in not considering that the requirements of intention contained in the definitions of:

   i) “cruel or inhuman treatment or punishment” in section 5(1) of the Migration Act 1958 (“the Act”), that pain or suffering be “intentionally inflicted”; and

   ii) “degrading treatment or punishment” in section 5(1) of the Act, that an act or omission be “intended to cause” extreme humiliation;

   were satisfied if a person performs an act knowing that the act will, in the ordinary course of events, inflict pain or suffering, or cause extreme humiliation. The Tribunal said it:

   “…has accepted that prison conditions in Sri Lanka are generally poor but it does not accept that there is a real risk that the applicant would be subject to particularly harsh prison conditions to constitute significant harm.” (CB 282, [75])

   The Tribunal in making this finding was required to have regard to the issue of intention, as that implicit in the definition of “significant harm”, but failed to do so.

Consideration of grounds

Ground one

Particular (a)

1. In my view there is no substance to this ground. At paragraph [67], the Tribunal accepted that prison conditions in Sri Lanka are generally poor and noted reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. The Tribunal did not consider that “all prisoners or prisoners in the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities during a brief period of remand.”[23] The Tribunal did not limit its consideration to “Tamil prisoners or those specifically targeted as known political opponents.” The Tribunal gave consideration to the circumstances of “all prisoners”.

   [23] [67].

Particular (b)

1. The Tribunal was entitled to give such weight to particular country information as it considered appropriate. As was stated in in a NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:

   [t]he weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellant submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law or a jurisdictional error for the Tribunal to base a decision on country information that is not true. The question of the accuracy of the country information is one for the Tribunal, not for the Court. If the Court were make its own assessment of the truth of country information, it would be engaging in merits review. The Court does not have the power to do that.

2. Further the full Court stated at [13]: “the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had different view from that reached by the Tribunal.”

Particular (c)

1. Having regard to the decision of the High Court in SZTAL vMinister for Immigration and Border Protection & Anor [2007] HCA 34, this ground of appeal must fail. Such was conceded the by applicant in written submissions.

Ground two

1. Under the particulars to ground 2(a), the applicant states: “the Tribunal thus misdirected itself to the question “whether the applicant will be subjected to harm” rather than “whether there was a real chance that he may be subjected to harm” during a period on remand.

2. The respondent referred the Court to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 412 – 413 as authority for the proposition that the phrase “well-founded fear of being persecution” requires both a subjective fear of being persecuted and a well-founded (objective) fear for that threat.

3. As to the task of the decision maker in evaluation whether an applicant has a well-founded fear for that threat, Gaudron J stated:

   [p]erhaps all that can usefully be said is that a decision-maker should evaluate the mental and emotional state of the applicant and the objective circumstances so far as they are capable of ascertainment, give proper weight to any credible account of those circumstances given by the applicant and reach an honest and reasonable decision by reference to broad principles which are generally accepted within the international community.[24]

   [24] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 413.

4. The Tribunal made reference to country information submitted by the applicant but gave weight to the DFAT report that assessed that returnees to Sri Lanka are treated the same way regardless of their ethnicity and religion.

5. At [67] – [68] the Tribunal rejected the applicant's claims, including that he had a perceived association with the LTTE, which would cause him to be targeted in prison. The Tribunal did not accept that the applicant “will be personally targeted and harmed for any reason advanced in the context of a very brief stay in remand pending bail” and by doing so was rejecting the factual premise that he would suffer harm. It was open to the Tribunal to conclude that it was not satisfied that the treatment faced by Sri Lankan returnees who have departed from Sri Lanka unlawfully amounted to persecution involving serious harm or giving rise to a real chance of such harm in the reasonably foreseeable future.[25]

   [25] [68].

6. In my view, there is no apparent error in the consideration given by the Tribunal as to whether there was a real chance of the applicant suffering serious harm.

Particular (b)

1. In a nutshell the particular is directed at whether the Tribunal failed to consider the requirements as to intention contained in the definition of “cruel or inhuman treatment or punishment” in section 5(1) of the Migration Act 1958 (Cth).

2. In my view there is no substance to this ground. Because the Tribunal found that because the prison conditions themselves would not give rise to a level which would constitute significant harm, there was no need for the Tribunal to consider whether or not pain and suffering was "intentionally inflicted”.

Ground three

1. This ground goes to the issue of the particular weight given to particular country information. That the Tribunal placed weight on DFAT reports rather than country information submitted by the applicant does not constitute a basis for a finding that the decision was unreasonable, arbitrary, illogical or unsupported by any probative evidence. As stated above in relation to ground 1(b), the question of the treatment by the Tribunal of country information is a matter for the Tribunal.

2. For these reasons each of the grounds fail and I make orders dismissing the application and order that the applicant pay the first respondent’s costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  16 October 2017