CRP15 v Minister for Immigration and Border Protection
[2018] FCA 1484
•2 October 2018
FEDERAL COURT OF AUSTRALIA
CRP15 v Minister for Immigration and Border Protection [2018] FCA 1484
Appeal from: CRP15 v Minister for Immigration and Border Protection & Anor [2018] FCCA 431 File number(s): VID 253 of 2018 Judge(s): BURLEY J Date of judgment: 2 October 2018 Catchwords: MIGRATION – refusal of a protection visa application – whether the Tribunal acted illogically or irrationally – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 36 and 65 Cases cited: CRP15 v Minister for Immigration and Border Protection & Anor [2017] FCCA 431
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Date of hearing: 22 August 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: N Rogers, Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 253 of 2018 BETWEEN: CRP15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
2 OCTOBER 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1. INTRODUCTION
This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal.
The appellant is a Sri Lankan citizen of Tamil ethnicity, who arrived in Australia by boat as an irregular maritime arrival in June 2012. On 6 November 2012, the appellant’s lawyers lodged an application for a Protection (Class XA) Visa (Visa). He claimed that he met the refugee or complementary protection criterion pursuant to s 36 of the Migration Act 1958 (Cth) (Act) based on fears of persecution by reason of his ethnicity, occupation, the actions of a particular naval officer, his actual or imputed political opinions, and his status as a failed Tamil asylum seeker who had departed Sri Lanka illegally.
A delegate of the Minister of Immigration and Border Protection was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act, and refused to grant the Visa. The appellant then applied to the Tribunal for a review of the delegate’s decision. On 27 November 2015 the Tribunal affirmed the delegate’s decision.
The appellant then applied to the FCCA, which dismissed his application for judicial review on 1 March 2018; CRP15 v Minister for Immigration and Border Protection & Anor [2017] FCCA 431. The appellant then filed a Notice of Appeal in this court. The grounds of appeal articulated in his Notice are as follows:
(1)That there is a jurisdictional error in the Federal Circuit Court Decision.
(2)Further grounds of appeal will be provided once I have legal representation.
The appellant represented himself at the hearing of his appeal with the assistance of a Tamil interpreter. He filed no written submissions. The Minister was represented by the Australian Government Solicitor’s office which provided written submissions in advance of the hearing.
2. THE DECISION OF THE TRIBUNAL
The appellant appeared at the hearing conducted by the Tribunal and gave evidence with the assistance of an interpreter. He was represented by a registered migration agent.
The Tribunal set out the claims advanced by the appellant based on his evidence at the hearing, his entry interview, and various signed and unsigned statements that were provided to the Tribunal.
The Tribunal noted that the appellant is a single Tamil, Hindu male who was born in North-Western province of Sri Lanka. His father and uncle worked as fishermen. The appellant claimed that in 2010 they were approached by a Sri Lankan naval vessel whilst at sea. His father was beaten badly by a particular naval officer. He was taken to hospital and, as a result of his injuries, had his leg amputated below the knee. A document dated May 2012 was provided to support this claim. Following this incident, his father could no longer work as a fisherman and the applicant took over his role in January 2011, at the age of 17. On the third day that he was out fishing, a navy boat came alongside and the same naval officer questioned the uncle about the whereabouts of the appellant’s father. When the uncle explained, the officer said that he did not like Tamils to speak back to him and assaulted the uncle. The engine blades of the naval vessel cut their fishing nets and they had to return to shore. The appellant claimed that the navy was responsible for monitoring fishing passes held by fishermen. Each day before leaving to fish the pass had to be collected from the naval offices and at the end of each fishing trip they had to be returned. That day, the appellant’s mother returned the fishing pass, but the naval officer shouted and swore at her and told her that the appellant had to return the pass in person. When the appellant did so, he claimed that the naval officer grabbed him and said that he would shoot him if he saw him on the boat again. After these incidents the appellant said that he could not go fishing and another uncle helped him get work on a paddy farm. The appellant claimed that the farm was burnt down by Sinhalese men claiming that it was their land. In January 2011, when the appellant was returning home on his bike, he claimed that he was apprehended by the same naval officer, who threatened to kill him if he did not leave the area. The appellant claims that in July 2011 the Sri Lankan navy or army came to his home looking for guns and bullets. He further claims that in early 2015 the authorities came to his home again looking for him, and his mother told them he was in Australia.
The Tribunal records that shortly prior to the hearing, it was notified by the appellant’s representative that the appellant wanted to make some new claims in support of his application. They centred on a further recollection by the appellant from when he was 16 years old. He said that the LTTE would come regularly to his home in the evening and take his father away. His father would return the next morning. This, the appellant claimed, happened three to four times a week for 4 to 6 months.
The Tribunal recorded a number of inconsistencies in the versions of events told by the Appellant. It stated that it found the appellant’s evidence evasive, vague and inconsistent and noted that it had to prompt the appellant during the hearing in order to elicit information about his claims.
The Tribunal then considered each of the appellant’s claims, which it identified as relating to his (a) Tamil ethnicity (race); (b) work as a Tamil fisherman; (c) fear of the Sri Lankan navy officer who allegedly assaulted the applicant’s father; (d) actual or imputed political opinion as supporter of LTTE on account of his Tamil ethnicity (or his father’s association with LTTE); and (e) his status as a failed Tamil asylum seeker who had departed Sri Lanka unlawfully.
I respectfully adopt the summary provided by the primary judge of the Tribunal’s reasons, which is as follows:
Tamil ethnicity (Reasons [57]–[61])
29The Tribunal accepted that the applicant, his father and his uncle had experienced discrimination and harassment as Tamils including at the end of the civil conflict: Reasons, [57]-[58]. The Tribunal found, based upon DFAT’s assessment, that there were currently no official laws or policies that discriminated on the basis of ethnicity or language, including in relation to access to education, employment or access to housing. The Tribunal observed that DFAT had further assessed that there was only a low level of discrimination in the implementation of laws and policies and that, more generally, there was a moderate level of discrimination between particular ethnic groups which was largely as a result of that civil conflict and its causes: Reasons, [59].
30The Tribunal recognised that DFAT’s conclusion was that the trend of monitoring and harassment of Tamils in day to day life had generally eased since the end of the conflict: Reasons, [60]. The Tribunal accepted that prior to May 2009 some Tamils were at risk of persecution, particularly those situate in the northern and eastern provinces due to perceived support of LTTE. The Tribunal observed that UNHCR eligibility guidelines released in 2010 considered that the human rights and security situation in Sri Lanka had improved such that there was no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country: Reasons, [61].
31The Tribunal found that in light of the applicant being a Tamil male from Udappu, the applicant did not fall within any of the risk profiles identified by the UNHCR: Reasons, [63]. The Tribunal also found, having regard to the applicant’s profile as a Tamil from Udappu, that the applicant's claims of persecution based on his Tamil ethnicity alone were not supported by the DFAT country reports and did not accept that there was a real chance he would be persecuted because of his Tamil ethnicity should he return to Sri Lanka in the reasonably foreseeable future. Accordingly, the Tribunal held that the applicant’s fear of persecution because of his race was not well founded or that there was a real risk that he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka: Reasons, [68]-[69].
Tamil fisherman & naval pass system (Reasons [74]–[77])
32The Tribunal also considered the applicant’s claim of racial persecution taking account of his profile as a Tamil fisherman. The Tribunal accepted that during the Sri Lankan civil war the navy had responsibility for issuing passes and that boats were not allowed to go out to sea without a pass. The Tribunal further accepted that, being fishermen, the applicant’s father and uncle would have been subjected to the navy pass system. It accepted that Tamil fishermen would have been stopped and questioned by the Sri Lankan navy.
33However, the Tribunal noted that since the end of the civil conflict in May 2009, fishing restrictions had been lifted with the result that navy passes were no longer required. The Tribunal also noted (as the delegate had done) that the naval function of issuing passes had been replaced by the issue of identity cards by the District Fisheries Office in each of the northern, eastern and western provinces. Fishermen to whom identity cards had been issued were thus freed of the restrictions which had previously been imposed by the naval pass system.
34The Tribunal found that the applicant would be able to apply for a fishing pass and be able to continue to work as a fisherman. In making these findings the Tribunal had regard to country information. The Tribunal did not accept that there was a real chance the applicant would face persecution. Furthermore, the Tribunal found there were not substantial grounds for believing that the applicant would face a real risk of suffering significant harm as a necessary or foreseeable consequence of being removed from Australia to Sri Lanka: Reasons, [74]-[77].
Fear of Sri Lankan navy officer (Reasons [78]–[90])
35The Tribunal accepted that the applicant’s father had had his leg amputated; however, the translated report upon which that finding was based was otherwise vague, incomplete and did not detail the cause or date of the injury giving rise to the amputation.
36The Tribunal did not accept the applicant’s claims that his father had been beaten by a navy officer in 2010 and accordingly rejected the applicant’s claim that the amputation of his father’s leg had resulted from injuries sustained during the incident.
37The Tribunal noted that the applicant had claimed that his father and uncle had had no further problems with the authorities after the alleged incident and otherwise found the applicant’s evidence as to this issue vague and inconsistent. Having considered the applicant's evidence, the Tribunal did not accept his claim that he had been harassed, threatened or persecuted by a Sri Lankan naval officer or that such officer had so treated his mother or uncle. The Tribunal likewise did not accept the applicant’s claim that in January 2011 a naval officer had pointed a gun at him and threatened him if he did not leave the area. Nor did it accept that in July 2011 the ‘SLN/Army came to the applicant’s home looking for guns and bullets and his mother told them he was working.’ Likewise, it did not accept that in early 2015, the authorities had come to his home looking for him and that those authorities had been told by his mother that he was now in Australia.
38For those reasons, the Tribunal was not satisfied there was a real chance the applicant would face persecution from the Sri Lankan navy or a particular Sri Lankan naval officer and that the applicant’s claimed fear of persecution by that officer was not well founded. For the same reasons, the Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there was a real risk that he would suffer harm.
New claims – (1) Father’s LTTE association (Reasons [91]–[97])
39The Tribunal rejected the applicant’s claims of fears of persecution because of an imputed political opinion as a supporter of LTTE.
40The Tribunal considered the applicant’s new claim in relation to fear of persecution based on his father’s asserted LTTE association to be vague and lacking in credibility and inconsistent with country information. It noted that this new claim had been raised after the applicant’s visa application had been refused by the delegate. It found that the applicant had fabricated this claim.
41The Tribunal did not accept that there was a real chance that the applicant would be persecuted in Sri Lanka because of his imputed political opinion as a LTTE supporter or because his father was alleged to have been associated with the LTTE. It regarded the applicant’s fears of persecution on this basis as not being well founded and, for the same reasons found there were not substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm.
New claims – (2) Failed asylum seeker who departed Sri Lanka illegally (Reasons [98]–[109])
42The Tribunal accepted that the applicant had left Sri Lanka illegally and that it would be known upon his return that he had unsuccessfully sought asylum in a Western country. For that reason, it considered the applicant’s fear of harm based on membership of a social group, being a failed asylum seeker from a Western country.
43The Tribunal accepted there were reports that failed asylum seekers returning to Sri Lanka had suffered abuse on their return, however it found that ‘the cases in relation to returnees overwhelmingly involve persons who are Tamil and have had connections with the LTTE or who are suspected of such connections, or persons who have criminal connections’ (emphasis added): Reasons [100].
44While the Tribunal accepted it was not in dispute that the applicant was a Tamil fisherman who had been born in Udappu and had lived there all his life until leaving for Australia, it observed that Udappu (a Tamil village) was not under the control of the LTTE during the civil war and the Tribunal did not accept that the applicant or any of his members were involved in the LTTE or that they had been associated with or supportive of the LTTE in any way.
45The Tribunal did not accept that the applicant by virtue of his employment as a Tamil fisherman, his ethnicity or for any other reason was imputed with political opinion in support of the LTTE. The applicant’s evidence at the hearing negated any basis for a finding that he had any criminal history or connections. Nor did the applicant have any involvement with politics in Sri Lanka and nor was he on any government watch list.
46The Tribunal had regard to DFAT country reports in relation to Sri Lanka which addressed or provided information on the treatment of returnees. The information obtained by DFAT in March 2014 from the Attorney General’s Department Sri Lanka (being the department responsible for the conduct of prosecutions), was that ‘no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future . . . The Magistrates Court in Colombo typically levies fines of around 5000 Sri Lankan rupees (around AUD $40) [to] around 50,000 Sri Lankan Rupees (around $400 AUD) . . . In most cases returnees were granted bail. . .’: Reasons [103].
47During the hearing, the Tribunal had discussed this country information with the applicant and his representative. The Tribunal found that, with the assistance of his uncle, the applicant would be able to pay the fine. The Tribunal was not satisfied that the scale of the fine was such as to amount to serious harm.
48Furthermore, the Tribunal noted a report of the UK Upper Tribunals (2013) that the Sri Lankan authorities approach regarding failed asylum seekers was based upon sophisticated intelligence both as to activities within Sri Lanka and in the Diaspora. The UK Upper Tribunal’s report included that ‘in post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government’: Reasons, [106] citing GJ & Others (post-civil war) Sri Lanka [2013] UKUT 00319 (IAC).
49The Tribunal was not satisfied that the applicant would be imputed with a political opinion because of him having illegally left Sri Lanka or that he would be singled out or treated differently because of the basis of him being a member of a social group of failed asylum seekers or any other particular social group. The Tribunal rejected this further new claim as supporting a conclusion that there was a real chance the applicant would be persecuted in the reasonably foreseeable future if he returned to Sri Lanka: Reasons, [107]-[109].
Having regard to these matters, the Tribunal concluded that Australia did not owe the appellant protection obligations under s 36 of the Act.
3. THE APPEAL
3.1 The decision of the FCCA
The appellant represented himself before the FCCA with the assistance of an interpreter. He relied on the following three grounds of judicial review:
(1)That there is a jurisdictional error in the AAT decision;
(2)The reasons provided by the second respondent to the first respondent in support of the second respondent's recommendation that the applicant was not a person to whom Australia had protection obligations were neither logical nor rational;
(3)Further grounds will be provided once I have legal representation.
The primary judge considered (at [54]) that the content of these paragraphs should be considered as representing one ground, namely that the Tribunal’s decision was neither logical nor rational (at [58]). He correctly considered that to establish illogicality or irrationality sufficient to give rise to jurisdictional error in refusing a protection visa, it must be demonstrated that the decision as to the state of satisfaction required under s 65 of the Act was one which no rational or logical decision maker could have arrived at on the same evidence as it was before the Tribunal, citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130] (per Crennan and Bell JJ). He noted that the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning that it adopted. After providing the comprehensive review of the Tribunal’s reasons to which I have referred above, the primary judge expressed the view that the Tribunal had engaged in a process of reasoning that was open to it on the evidence before it, and that the reasons were neither irrational, illogical nor unreasonable (at [60]).
The primary judge then observed that in [12] of the Tribunal’s reasons, at the conclusion of an introductory section to the reasons, the Tribunal states that it has concluded that the matter “should be remitted for reconsideration”. The primary judge observes that this statement is inconsistent with the balance of the reasons, which plainly express the view that the appellant’s claims are not well founded. The primary judge concludes those words in [12] were in error, and that otherwise there is no content in the Tribunal’s reasons that warrant a finding that it fell into jurisdictional error.
3.2 Consideration
The single ground of appeal advanced by the appellant before this court is that there is jurisdictional error in the FCCA decision. No particulars of the basis for the alleged error are supplied. It may be inferred that the appellant contends that the FCCA fell into error for failing to find that the Tribunal fell into jurisdictional error because its reasons were irrational or illogical, that being the basis for the appellant’s application for review before the primary judge. However, I can see no basis upon which this court would reach the conclusion that the Tribunal’s reasons were irrational or illogical, or for concluding that the primary judge erred in failing to find that this was so. In my view the primary judge applied the correct legal test to the consideration of the reasons of the Tribunal. Having regard to the reasons of the Tribunal, it is my view that those reasons reflect no lack of rationality or logic, having regard to the principles set out in SZMDS.
I have set out the primary judge’s summary of the conclusions reached by the Tribunal in some detail above. The conclusions reached by the Tribunal in relation to the appellant’s first claim (alleged fear of harm arising from his Tamil ethnicity) were rejected on the basis of country information available to the Tribunal, and were rationally supported by that information. The conclusion based on his second claim (of racial persecution arising from the appellant’s profile as a Tamil fisherman) took into account country information that the system of fishing restrictions has been lifted and that the navy pass system had ended. It was not irrational or illogical to rely on that information in concluding that the claim to persecution on this basis was not sustained. The Tribunal’s rejection of the third claim (fear of harm as a result of the actions of the naval officer) turned on the rejection of the appellant’s evidence that his father had been beaten by that officer in 2010, and the rejection that the applicant had been beaten or persecuted by the same naval officer thereafter. The Tribunal made these findings on the basis of a conclusion that the appellant’s testimony as to these events was not credible. That conclusion was reasonably open to the Tribunal on the basis of the inconsistencies that it had observed in the appellant’s evidence. Similarly, the Tribunal rejected the more recent (fourth) claim advanced by the appellant that by reason of his father’s association with the LTTE, there was a real chance that the appellant would be exposed to persecution on the basis of an imputed political opinion. The Tribunal found, again based on what it considered to be the vague and inconsistent testimony of the appellant, that the appellant had fabricated this claim after his application was refused by the delegate. Finally, the Tribunal’s rejection of the fifth claim (based on the fact that he is a failed asylum seeker who departed Sri Lanka illegally) was rationally based on country information that was available to it, especially given the Tribunal’s conclusions rejecting the other claims that might otherwise have suggested that the appellant had a profile that might warrant additional attention from the Sri Lankan authorities upon his return to Sri Lanka.
Finally, having regard to the fact that legal unreasonableness may not only be based on illogicality or irrationality that is said to lie in the process of reasoning (SZMDS at [131]) but also on the basis of the outcome of the decision, it is appropriate to consider whether within the area of decisional freedom available to the Tribunal, its decision has the character of a choice that is arbitrary, capricious or without common sense; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) at [44]. In that regard, I am satisfied that the reasoning of the Tribunal does not lack an evident and intelligible justification and is therefore not legally unreasonable in this sense.
In the result, I am satisfied that the primary judge did not fall into error in concluding that the Tribunal did not fall into error.
4. DISPOSITION
The appeal must be dismissed. The appellant must pay the first respondent’s costs of the appeal.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 2 October 2018
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