MZAGJ and Minister for Immigration and Anor

[2016] FCCA 287

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAGJ & MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 287

Catchwords:
MIGRATION – Application for judicial review – whether the tribunal failed to give adequate reasons – whether the tribunal failed to consider that certain factual findings may have been wrong  – whether the tribunal failed to consider the applicants own profile but emphasised the circumstances of his family members – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Minister for Immigration and Citizenship v SZLSP & Ors [2010] FCAFC 108 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam& Ors (1999) 93 FCR 220

Applicant: MZAGJ

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1238 of 2014

Judgment of: Judge McGuire

Hearing date: 29 October 2015

Date of Last Submission: 20 November 2015

Delivered at: Melbourne

Delivered on: 16 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Hodges

Solicitors for the Applicant: Stephen Hodges Solicitors

Counsel for the Respondents: Ms Senanayake

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2. That the application for judicial review be dismissed.

3. That the applicant pay the first respondent’s costs in a quantum of $4500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1238 of 2014

MZAGJ

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) made 3 June 2014 affirming a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (“the visa”). 

2. The applicant was born in Jaffna, Sri Lanka in 1982.  He fled to India with his mother and sister in 1990. The applicant’s mother and the sister repatriated to Sri Lanka in 2004 by which time the applicant was 22 years old. He married and his wife and two children remain in India.  He claims that his wife has since been visited by Indian police and repeatedly questioned and given warnings.

3. The applicant is ethnically Tamil. He lived in displacement camps in Tamil, Nadu, in India from 1990. He arrived in Australia on 11 May 2012 as an irregular maritime arrival from India. The applicant applied for the visa on 6 August 2012. 

4. The applicant claims to fear harm due to suspected links to LTTE. He claims that an uncle was forcibly recruited to LTTE in 2009 and is now missing. He claims that his father has been subjected to ongoing enquiries about LTTE links since 2010 and that questions have been asked of him about the applicant. The applicant claims that he would suffer persecution if returned to Sri Lanka because he will be imputed with pro-LTTE political opinion and that his profile would include being a failed asylum seeker.

5. The applicant’s application does not particularise any claim or argument. He has, however, engaged a solicitor who has formulated grounds of complaint in helpful written submissions filed 19 October 2015. A further particular was disclosed orally at the hearing before me, which I understand took Counsel for the first respondent by surprise and leave was therefore given for further written submissions. 

6. The three grounds articulated in the applicant’s written submissions can be summarised as follows:

   i)The Tribunal’s decision is infected with error in that the Tribunal failed to give adequate reasons as required by s430 of the Migration Act 1958 (Cth) (“the Act”) in respect of its findings that it did not accept that the applicant’s wife was questioned repeatedly, which involved warnings or led to intelligence between Indian and Sri Lankan authorities;

   ii)That the Tribunal fell into jurisdictional error in that it did not consider the possibility that certain factual findings were wrong and infringed the principle in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and specifically the applicant’s reasons advanced for not returning to Sri Lanka with his mother and sister being, in particular, that no mention is apparent in the reasons of the applicant being likely to be inducted into the LTTE because of evidence that one member of each family was required to contribute to its service;

   iii)Ground 3 asserts that the Tribunal erred in failing its obligation outlined by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs;  Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 where the task of the Tribunal being to examine the likely treatment of the applicant if returned to Sri Lanka, the Tribunal placed undue emphasis on how the applicant’s father and brother, who had not left Sri Lanka, and his mother and sister, who were repatriated in 2004, were treated. That is, it is argued that the Tribunal did not examine the particular profile of the applicant himself. 

7. The particular added during oral submissions relates to ground 2 and alleges that the Tribunal erred in failing to assess whether the applicant would suffer harm as a result of being admitted to a rehabilitation program on return to Sri Lanka, given country information and the finding by the Tribunal that the applicant’s uncle was forcibly recruited into the LTTE.

The Tribunal’s Decision

1. At [8] the Tribunal’s reasons summarise the application as follows:

   ·He left Sri Lanka by boat and entered India illegally.  He was first in Mandavam camp then relocated to Perumal Puam in 1996.  His parents said the escape was due to war and the impact on them as Tamils. His family had no contact with the LTTE when in Sri Lanka, but his father said his younger brother (the applicant’s uncle) was recruited by the LTTE forcibly when he was still young. The applicant is aware that his uncle did contact his father twice in June 2009 but there has been no contact since then or knowledge of the uncle’s whereabouts.

   ·The applicant wrote that he suffered in the camps in India as displaced Tamil – he was deprived of personal freedom.  Since his departure from India, his wife and family informed him that the Q branch of the Indian police visited them and continually interrogated and threatened them. He cannot obtain legal status or residency in India. He fears Q branch and other Indian agencies may be in contact with the Sri Lankan government to return Tamils back to Sri Lanka.

   ·He cannot return to Sri Lanka – as a Tamil, he will face potential harm from the authorities and more so recently believe members of CID visited his father and family in Jaffna about his uncle’s past involvement with the LTTE. His father was taken by CID (sic) 2010 and beaten and told he hid arms for the LTTE. In listing family members, his father informed CID that the applicant was in India and they responded by asking if he had been an LTTE supporter.  This remains an issue for the applicant and his family. Even up to the present time, his parents and family are questioned on a monthly basis by CID. The applicant will face potential harm and even death from the government. He fears the police, CID, EPDP, the SLA and Karuna will harm and kill him, as they sought him in relation to a perceived family association with the LTTE. He fears that the police, CID, EPD, the SLA, Karuna and Pillyan will arrest and kill him on suspicion of his uncle’s LTTE association and take revenge – he heard that he will be killed by these groups if he returns to Sri Lanka because of “this mentioned situation”.

2. The Tribunal accepted the applicant’s identity, nationality and that the applicant did not have any relevant third-country rights, including in India. The Tribunal generally accepted the applicant’s chronology as to his movement between Sri Lanka and India.[1]

   [1] Tribunal’s resons, 3 June 2014 at [19].

3. The Tribunal accepted that the applicant was born in Jaffna and that his parents and siblings all currently live in Jaffna.  It was accepted that the mother and siblings fled Jaffna in 1990 and returned in 2004 and that if the applicant’s visa application be unsuccessful then he would return to Jaffna.[2]

   [2] Tribunal’s resons, 3 June 2014 at [20]

4. At [22] the Tribunal accepted that the applicant’s father and his two brothers had remained in Sri Lanka but have no LTTE links and did not face adverse attention from the authorities until 2010 (the father). The Tribunal’s reasons state:

   I find the lack of state attention on the applicant’s family members as they remained living stably in an LTTE stronghold in the north as Tamils is very strongly suggestive that the authorities had no basis for concern about them as being LTTE-linked.

5. At [23] the Tribunal accepted that the applicant’s uncle was forcibly recruited to LTTE during the civil war as stated:

   The representative argued at the end of the hearing that nothing in the evidence shed light LLTE (sic) role the uncle had, and no-one could say what had happened to him, and that the applicant only with encouragement had offered that the uncle may have been forcibly killed.  I give the benefit of the doubt that the uncle’s whereabouts has not been known to the family since he visited them twice in 2009.  I give the benefit of the doubt to the (albeit murky, vague) suggestions that the uncle somehow evaded re-education processes and at the war’s end, and is missing from 2009 and is possibly dead: these matters are not entirely implausible or incompatible with reporting about arbitrary disappearances in Sri Lanka, including of LTTE suspects and including the end-war period in the North.

6. The applicant before me does not challenge the finding of the Tribunal at [25] that the applicant’s father was detained once but released and not subject to ongoing questioning about LTTE links or knowledge of LTTE weapons.

7. At [26] the Tribunal found it was implausible that the applicant’s father was subject to ongoing questioning or suspicion and found the evidence very strongly suggestive of the father being questioned once as a matter of general profiling of Tamils in 2010.

8. At [27] the Tribunal notes the applicant’s claim that during the war there were concerns about weapons running from Tamil Nadu to the Tamil-controlled north of Sri Lanka but found there to be no real chance that the authorities will impute involvement in weapons running to the applicant given the lack of interest in male members of his family in Jaffna. The Tribunal did not accept that the Sri Lankan authorities will impute LTTE links to him.

9. At [30] the Tribunal says:

   Even giving the benefit of the doubt that the Indian authorities may have questioned the applicant’s wife about the applicant’s whereabouts due to his unauthorised departure, I do not accept this was done repeatedly or involved warnings, or led to intelligence transfer between the Indian and Sri Lankan authorities.  Even if the applicant left India out of subjective fear of return to Sri Lanka in 2012, when he felt there was growing government pressure for refugees in Tamil Nadu to return to Sri Lanka, I do not accept his was well-founded. I have not considered further the applicant’s claimed fears of forcible return to Sri Lanka from India – given his return to Sri Lanka would now be from Australia, not India.

10. At [49] the Tribunal concludes:

    For the reasons stated, and having regard to his individual and cumulative claims, and all his accepted circumstances, I do not accept the applicant faces any real chance of serious harm, in any form advanced, for any reason advanced, now or in the reasonable foreseeable future, either in the process of arriving in Sri Lanka, or returning to, or living in, Jaffna.  Accordingly, I find the applicant’s stated fears of persecution in Sri Lanka are not well-founded.  I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and I find s.36(2)(a) is not met.

Application to this Court

Ground 1

1. This ground complains that the Tribunal failed to give adequate reasons as required by s430 of the Act in respect of the findings at [30] and, in particular, the finding that the authorities may have questioned the applicant’s wife but in not accepting that this was done repeatedly or involved warnings or led to intelligence transfer between the Indian and Sri Lankan authorities. The applicant argues that these findings are not based on any factual platform and are not supported by evidence and no reasons are apparent on the Tribunal’s record.

2. I am satisfied that a contextual reading of [30] discloses the reasoning of the Tribunal grounding its findings. This paragraph begins with and involves the applicant’s claim of him being fearful of a return to Sri Lanka from India. The Tribunal states (and it is open for it to do so) that his evidence regarding mistreatment in India has no bearing on his claims pursuant to his application. The paragraph itself appears under the heading “The applicant’s circumstances in Tamil Nadu, India”. As the Tribunal says, any fears claimed by the applicant in respect of transfer of knowledge and information between Indian and Sri Lankan authorities is dealt with or subsumed in its findings in respect of the applicant himself having no LTTE profile (a further finding open to the Tribunal).  Put simply, the paragraph in context sits on its initial premise of “given the finding the applicant would be returned to Sri Lanka …” the Tribunal is entitled to make findings of credit and fact in respect of these matters.

3. It is well-established that a breach of s430 of the Act does not in itself constitute jurisdictional error.[3]However, and in any event, I am satisfied that read as a whole, the Tribunal sets out reasons for its general findings of credit and fact in respect of the applicant’s claims.  Specifically, his claims in respect of India are disposed of with clarity in what is essentially an issue of credit in respect of the claim of repeated interview of his wife and where no corroborative evidence was adduced. Consequently, I find no merit in ground 1 of the complaint.

   [3] Minister for Immigration and Citizenship v SZLSP & Ors [2010] FCAFC 108 at [54].

Ground 2

1. The applicant complains that the Tribunal fell into jurisdictional error by failing to follow the principles set out in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. The argument of the applicant is that the Tribunal did not consider that its findings, or a number of them, may have been wrong in fact. The argument continues that it was then incumbent upon the Tribunal to consider the applicant’s claims of fear of persecution on the basis that the Tribunal may have so been wrong.

2. Counsel for the first respondent refers me to the observations and comments of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam& Ors[4] and in respect of the principles arising from Guo as follows:

   In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

   [4] Minister for Immigration and Multicultural Affairs v Rajalingam& Ors (1999) 93 FCR 220 at [62]

3. On my understanding the above can be summarised that where a Tribunal remains unsure or is equivocal in its findings as to an alleged factual claim occurring then it must take into account the possibility that the event did take place in considering the risk of future harm to an applicant.  I find nothing inconsistent in this statement of principle with the task of a Tribunal to make findings of fact as grounding its ultimate obligation in respect of the convention.

4. In my view, the submissions of Counsel for the applicant, both written and oral, were convoluted and vague in respect of this ground and seem to overlap with the separate claim that the Tribunal did not give reasons for its findings.  It seems to me that the argument now before this Court effectively repeats that of the applicant before the Tribunal as to why it should accept his claims.  The fact that a Tribunal does not accept the claim of an applicant does not render it “unsure”.  In fact, my close reading of the Tribunal’s reasons does not disclose any reference to uncertainty in respect of its relevant findings of fact and credit.  As such, the principles in Guo do not, in my opinion, apply.  It follows that I find no merit in this ground of complaint.

5. The oral particular raised by the applicant’s legal representative at the hearing before me was also pleaded under Ground 2. The applicant alleges that the Tribunal failed to assess whether he would suffer harm as a result of being admitted to a rehabilitation program on return to Sri Lanka and hence fell into jurisdictional error. 

6. The Tribunal referred to country information originally put before the Delegate.  At [10] the Tribunal’s reasons disclose: 

   [10] The applicant is taken to be on notice of the delegate’s findings and reasons for refusal including as follows.

   …

   ·On imputed LTTE links from family involvement with the LTTE and further scrutiny due to his being a Tamil male from the north, the delegate – citing reports that the Sri Lankan Government was seeking to rehabilitate LTTE members through post-war programs (including a quote from the Defence Secretary in 2012 that the government had placed the vast majority of combatants into rehabilitation programs) – was not satisfied that the applicant would be persecuted on the basis of his extended family’s LTTE involvement.

7. Leaving aside any argument that the country information noted by the Delegate was not properly before the Tribunal and/or not raised by the applicant in his case, I am satisfied that any such issue (if there be one) is subsumed in the primary reasons of this Tribunal rejecting the applicant’s claims in respect of LTTE involvement or connection, actual or imputed.  Again, no uncertainty in the Tribunal’s findings is apparent so as to activate the principle in Guo.  It follows that I find no merit in this ground of complaint.

Ground 3

1. The applicant argues here that undue emphasis was placed by the Tribunal on the circumstances of members of the applicant’s father to the neglect of consideration of the applicant’s own profile to an extent that the consideration and findings were infected with jurisdictional error. 

2. The applicant refers the court to the decision of the High Court in Appellant S395/2002; Appellant S396/2002 (supra) where their Honours Gummow and Hayne JJ say at [77] and [78]: 

   The objective element [of the Convention definition of “refugee”] requires the decision-maker to decide what may happen if the applicant returns to the country of nationality.  That is an inquiry which requires close consideration of the situation of the particular applicant…

   [77] Further, there is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant's claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen. That is, there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country…

   [77] Further, there is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant or the applicant’s claim, to a conclusion about what might happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen.  That is, there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country…

   [78] The central question in any particular is whether there is a well-founded fear of persecution.  That requires examination of how this applicant may be treated if he or she returns to the country of nationality.  Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.

1. The applicant’s solicitor in his written submissions particularises peculiarities of the applicant’s profile.  I find no merit in this argument.  Indeed, it was the applicant himself who mounted claims or integers of claim in respect of members of his family including his father, uncle, mother, brothers, and wife. The applicant argues that he would be imbued with political opinion accordingly. It follows that the Tribunal may well have fallen into error had it not considered the applicant’s claims. This is not to say that the distinguishing particulars of the applicant’s own profile were not considered and engaged. In this sense, the matters raised in the written submissions for the applicant at [34(c)] amount to no more than an attempt at impermissible merits review.  There is no merit in this ground.

Conclusion

1. Given that I find no merit in any of the grounds of complaint made by the applicant, the application will be dismissed with an order for costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge McGuire.

Date: 16 March 2016