WZASF v Minister for Immigration
[2014] FCCA 2756
•27 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZASF v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2756 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.424AA |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 75 ALD 630 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 10 |
| Applicant: | WZASF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 111 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 11 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 27 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanton |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the respondents: | Mr Brown |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 111 of 2013
| WZASF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of Sri Lanka born on 23 April 1974 in the Jaffna Province. In 2001, he travelled to Saudi Arabia where he worked for 19 months. He returned to Sri Lanka in 2003. He later left Sri Lanka and travelled to India on his own passport leaving Colombo Airport on 15 February 2011. He left India on 27 April 2012 and arrived in Australia on 11 May 2012 as an unauthorised boat person at Christmas Island in Western Australia. He applied for a Protection (Class XA) visa (‘the visa’) on 8 August 2012. A delegate (‘the delegate’) of the Minister for Immigration and Citizenship (as it then was) (‘the Minister’) refused to grant the visa on 19 September 2012.
On 24 October 2012, the Applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of the delegate’s decision. On 14 December 2012, the Applicant attended a hearing before the Tribunal at which he gave evidence and presented arguments. He was assisted by his registered migration agent and an interpreter in the Tamil and English languages. Post-hearing he submitted a further submission to the Tribunal. On 19 April 2013, the Tribunal affirmed the delegate’s decision.
In his Amended Application for judicial review of the decision of the Tribunal filed 24 December 2013, the Applicant sought an order that the decision of the Tribunal be quashed and that a writ of mandamus issue directed to the Tribunal requiring it to determine the Applicant’s application according to law. The grounds of the application are as follows:-
“1. The Second Respondent failed to consider an integer of the applicant’s claims, namely that he was at risk of persecution as a failed asylum seeker with an “LTTE past”.
Particulars
(a) The applicant claimed that he was at risk of persecution on return as a failed asylum seeker with an “LTTE past” and/or that his risk of being monitored and targeted on return to Sri Lanka as a failed asylum seeker were increased because he was “a known and charged former LTTE member.”
(b) The Second Respondent accepted that the applicant had previously been detained against his will, in an LTTE camp, but found that he had not experienced such persecutory treatment for 16 years.
(c) The Second Respondent accepted that the applicant was detained by Sri Lankan authorities in 2008 on suspicion of an association with the LTTE but found that he was released as no longer a person of interest.
(d) The Second Respondent failed to consider the combined claim advanced by the applicant, that his position as a failed asylum seeker would be exacerbated by his previous arrest and dealings with the police as a former LTTE member.
2. The Second Respondent’s decision was unreasonable.
Particulars
(a) The applicant claimed to have, in recent times, been harassed and beaten by members of the Karuna group because of his LTTE past association.
(b) The applicant’s claim concerning the Karuna was significant as it had precipitated the applicant’s departure from Sri Lanka.
(c) The Second Respondent accepted that, according to country information, the Karuna group was implicated in abductions, killings and criminal enterprises.
(d) The Second Respondent rejected the applicant’s claim as “unconvincing” and further, did not accept that the applicant would not have raised the question of an attack by the Karuna in his application process had such an attack occurred.
(e) Contrary to this finding, the Second Respondent had earlier in its decision accepted the explanation of the omission offered by the applicant and his representative and indicated that it would therefore not draw an adverse inference against the applicant for this reason.
(f) The reasoning of the Second Respondent on a critical and significant claim was internally inconsistent and unreasonable as to constitute jurisdictional error.”
The First Respondent seeks dismissal of the application and costs.
The Applicant’s claims were as accurately set out in the Applicant’s Submissions filed 28 July 2014 as follows:-
“7. The essential aspects of the applicant’s claim were that:
7.1 He was born on 23 April 1974 in Jaffna Province in Sri Lanka;
7.2 He is a Sri Lankan citizen of Tamil ethnicity and of the Roman Catholic faith;
7.3 He is married with three children;
7.4 In 1989, when he was 15 years old, he was recruited by the Liberation Tigers of Tamil Eelam (LTTE). He did not participate in combat. He remained with the LTTE for 2 years;
7.5 In around 2009, during a family dispute, the applicant’s wife’s uncle informed authorities that the applicant was in the LTTE;
7.6 At the RRT hearing the applicant gave evidence that members of his wife’s family informed the Karuna Group as to his LTTE past;
7.7 At the RRT hearing, the applicant stated that in 2008 the Karuna group twice came into his home. The first time he was attacked, and the second time he was attacked and then taken to the police;
7.8 About a week after his release from prison, he was threatened by a group of 10 uniformed people on motorbikes. At the RRT hearing the applicant gave evidence that he was “bashed”. He reported the matter to police but was told not to worry about it;
7.9 He was harassed again on three or four occasions, and the group became more threatening. He was told not to be surprised if he found himself in a “white van”;
7.10 The applicant claimed that the government or its agents wanted him to inform on people from the LTTE and did not believe that he did not know any; and
7.11 He left Sri Lanka for India on 15 February 2011, and then left India for Australia on 27 April 2012;
8. The applicant claimed protection on the basis of:
8.1 His ethnicity as Tamil;
8.2 His imputed political opinion as a former member of the LTTE; and
8.3 His membership of a particular social group, “… as a former LTTE member he would be at risk of further significant harm were he again brought to the government’s attention as a returned failed asylum seeking”;
9. By post-hearing submission dated 14 December 2012, the applicant submitted, amongst other things:
9.1 “[T]he Applicant’s profile will be automatically and quite negatively raised should he be returned to Sri Lanka given that he will be ‘processed’ on arrival as a failed asylum seeker with a LTTE past”;
9.2 With regard to the applicant's allegation about the Karuna group, and the possible impact upon his credibility, it was submitted that the applicant's:
“… failure to previously mention the Karuna group as being his assailants was neither a memory lapse nor a fabrication. The failure was due to his confusion as to who the assailants actually were, given they were unknown to him and they did not identify themselves or their organisation.
In a misconceived attempt to throw light on who was behind the incidents [the applicant] has ‘made a guess’ that his attackers and tormentors were from the Karuna group.”
The Tribunal decision
In relation to the Applicant’s fear of harm for reasons of membership of a particular social group, namely, returned failed asylum seekers, the Tribunal found that:-
a)country information suggested that Tamils who return to Sri Lanka as failed asylum seekers did not appear to be subjected to harassment or mistreatment; and
b)in regard to whether the Applicant faced a prospect of prosecution for illegal departure from Sri Lanka pursuant to that country’s Immigrating and Emigration Act of 1948 (‘the Immigrating and Emigration Act’), the Applicant left Sri Lanka bound for India using his own passport in February 2011 and proceeded from India to Australia. The Applicant was therefore not in beach of the illegal departure provision of the Immigrating and Emigration Act.
In relation to complementary protection, for the same reasons that the Tribunal found that there was no real chance of serious harm, the Tribunal found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there would be a real risk that the Applicant would suffer significant harm.
The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there is a real risk that the Applicant would be arbitrarily deprived of his life, that the death penalty would be carried out on him, that he would be subjected to torture, that he would be subjected to cruel or inhuman treatment or punishment, or that he would be subjected to degrading treatment or punishment as defined.
The Applicant’s claims for protection in his visa interviews in August 2012, as referred to by the delegate, included that:-
“He was beaten up by the Special Task Force (STF), and they gave him one month to identify someone else from the LTTE. He did not comply and one month later he was beaten again by the STF, then handed over to the police. He was imprisoned for three months before being released without charge because of his young age when forcibly recruited by the LTTE.”[1]
And;
“About a week after his release from prison in late 2008, while he was walking to work, the applicant was approached by a group of people on motorbikes and wearing military fatigues. The written statement does not identify the group but the applicant referred to them in his PV interview as the Special Task Force (STF). He was questioned as to why he was out of prison and asked to identify, for payment, at least one person who was in the LTTE. The applicant replied that he had not been in the LTTE for the previous 15 years and did not know anyone from the LTTE any more. He was sworn at, and they told him they would be back.”[2]
[1] Department of Immigration and Citizenship Protection (Class XA) Visa Decision Record, 6.
[2] Department of Immigration and Citizenship Protection (Class XA) Visa Decision Record, 6.
Before the Tribunal, as summarised by the Tribunal in paragraph 48 of its Decision Record dated 19 April 2013 (‘the Decision Record’), the Applicant, when asked to provide more information about the above claim of being approached by a group of people wearing uniforms and riding motorcycles said that:-
“… these are people who are associated with the military. He said the first time they bashed him and left him, however on the second occasion they took him to the police station. The Tribunal pointed out that according to the delegate’s decision record, the applicant claims he reported the matter to the police, whereas the applicant’s oral evidence at the hearing is that after the first attack they took the applicant to the police station and reported him to the police. The Tribunal told the applicant that this evidence appeared inconsistent.”[3]
[3] Refugee Review Tribunal Decision Record dated 19 April 2013.
The Tribunal invited the Applicant to explain what he feared about returning to Sri Lanka. The Applicant responded that he feared the Karuna group. The Tribunal, as set out in paragraph 40 if it’s Decision Record:-
“… told the Applicant that from his application in the Department’s file and from the delegate’s decision record, it seemed that the applicant was claiming a fear of persecution if he returns to Sri Lanka because of his association with the LTTE, and important, no mention was made of the Karuna. The Tribunal asked the applicant why he had not raised the claimed threats from the Karuna before this hearing with the Tribunal. The applicant responded that no one asked him a question about this so he did not mention it.”
The Tribunal was concerned with the Applicant’s credibility in relation to the Karuna group claim, and told him so. In paragraph 56 of its Decision Record, the Tribunal said:-
“Pursuant to section 424AA, the Tribunal explained that the absence of the applicant making any reference to the Kuruna (sic) in his application for protection visa or in his interviews with the delegate, may lead the Tribunal to conclude that the addition of the reference to the Kuruna (sic) is a fabrication or an invention aimed at enhancing his application for a protection visa.”
The response, post-hearing, of the Applicant to this matter, was that the Applicant was confused as to who his assailants actually were and that he had made a guess that his attackers were from the Karuna group. It was requested the Tribunal allow some latitude to the Applicant in light of his poor education.
The Tribunal also invited the Applicant to comment on information pursuant to s.424AA of the Migration Act 1958 (Cth) in respect of other matters as set out in paragraphs 52, 53 and 54 of its Decision Record as follows:-
“52. Pursuant to section 424AA of the Act, the Tribunal told the applicant about information which it considered was adverse to his claims for protection and explained that this information would be the reason, or a part of the reason, why the Tribunal might affirm the decision under review. The Tribunal explained that the applicant had a right to respond to this information, and a right to an adjournment before responding. The Tribunal explained that from the evidence before it, including the applicant’s statutory declaration, sworn on 8 August 2012, the Tribunal notes the applicant declaring that the police released him saying that his association with the LTTE was not an issue because he was forcibly recruited when he was very young and that he was now married. The Tribunal explained that if it accepted this information, it might conclude that he would not be a person of interest or a person to be targeted by the authorities should he return to Sri Lanka now or in the reasonably foreseeable future.
53. Pursuant to section 424AA, the Tribunal invited the applicant to comment on the information that the applicant did not experience any persecutory treatment for the 16 years from the time be left the LTTE camp until his claimed detention in 2008/9.
54. Pursuant to section 424AA, the Tribunal advised the applicant that it appeared that he was permitted to leave Sri Lanka at the airport and travelling on his own passport, without being detained or questioned. Furthermore, it appears that the applicant was allowed to depart for Saudi Arabia, and also to re-enter Sri Lanka after Saudi Arabia without problem. It was explained that the Tribunal may therefore concluded that the applicant is not a person of interest to the Sri Lankan authorities and that this may be the reason, or a part of the reason, why the Tribunal may affirm the decision under review.”
The Tribunal also considered independent country information including that which considered that Tamils with an actual or perceived association with the LTTE remain at particular risk of detention and torture in Sri Lanka.
Ground one
It is well established that the Tribunal is required to correctly construe and consider each claim (including each element or integer of each claim) made by an applicant.[4] In so doing, the Tribunal must give proper, genuine and realistic consideration to the evidence before it, and each claim made by an applicant that is a “substantial, clearly articulated argument relying upon established facts”.[5]
[4] Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1.
[5] Minister for Immigration and Citizenship v SZJSS[2010] HCA 48; ; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389.
It is clear the Applicant made a claim in relation to a particular social group, namely that the Applicant was a failed asylum seeker with an LTTE past. That is accepted by the First Respondent. It is also accepted by the First Respondent that the claim was not dealt with in those terms by the Tribunal. The Tribunal however made findings that the Applicant:-
“… is no longer a person of interest for reasons of his past association with the LTTE, or for any other reason, to the Sri Lankan authorities. The Tribunal also considered the evidence given by the applicant that the applicant has not suffered harm during the period from when he claims he was released by the LTTE until he claims he was subjected to claimed threat in 2008. When considered in light of country information, the Tribunal finds that this further supports a finding that the risk of serious or significant harm is remote or insubstantial and not a real chance.”[6]
And;
“… is not a person who would be suspected of having relevant links with the LTTE and on that basis he would not be a person of interest or a person to be targeted for harm for reasons of his actual or imputed political opinion were he to return to Sri Lanka now or in the reasonably foreseeable future.”[7]
[6] Refugee Review Tribunal Decision Record dated 19 April 2013 at [102].
[7] Refugee Review Tribunal Decision Record dated 19 April 2013 at [105].
The Tribunal considered the Applicant’s claims individually and cumulatively. Under its Decision Record heading “Returned failed asylum seekers and illegal departures” it considered country information including that of prospective persecution for failed asylum seekers with an actual or imputed association with the LTTE. The Tribunal clearly considered the claim made and concluded that the Applicant’s history with the LTTE would not result in him being exposed to harm for that reason.
Once the Tribunal had concluded that the Applicant’s evidence and the country information showed that the Applicant would not suffer harm that amounted to serious harm or significant harm if returned to Sri Lanka due to any real or perceived connection with the LTTE, it did not need to address each argument put by the Applicant as part of his overall claim that was related to his past connection to the LTTE. Its conclusion as to the Applicant’s claims in relation to the LTTE subsumed all of the contentions that were raised by the Applicant including in relation to a claim to fear harm on the basis of membership of the particular social group.[8]
[8] MZXSA v Minister for Immigration and Citizenship[2010] FCAFC 123 at [110]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 75 ALD 630 at [47].
The Applicant argues that although the Tribunal dealt with the claim of the Applicant’s interest to authorities in Sri Lanka before his departure, being a person with past links to the LTTE and concluded that he was of no interest, what was before it was a different claim being that having now sought asylum and failed, the Applicant was a member of the particular social group claimed and that needed to be addressed by the Tribunal. That is, he would be treated differently from other failed returned asylum seekers because of his LTTE past. This was a claim it was argued that could not be subsumed. I reject that argument. The Court accepts the First Respondent’s argument in response that:-
“Having assessed the country information and the applicant’s evidence, the Tribunal concluded that the applicant would not be suspected of having links with the LTTE and would not be a person of interest for this reason, and accordingly there was not a real chance that the applicant would suffer harm for this reason … It followed from this conclusion that a key aspect of the evidentiary basis for the claim to fear harm as a member of the particular social ground had completely eroded. Accordingly, the claim did not rise to the level of “a substantial, clearly articulated argument relying upon established facts” in the sense articulated by Justices Gummow and Callinan in Dranichnikov [(2003) 197 ALR 389].”
Ground two
Amongst its findings and reasons, the Tribunal set out the following paragraphs: -
“96. The Tribunal considered the apparent omission of a reference by the applicant to the Karuna Group in his application and interviews before the delegate. The Tribunal accepts the explanation of this omission offered by the applicant and his representative. The Tribunal therefore does not draw adverse inference against the applicant as a result of this. In this respect, and in assessing the applicant's claims generally, the Tribunal is mindful of the view articulated in Sundararaj v MIMA (1999) FCA76 which is authority for the principle that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. However, the Tribunal found that important aspect of his claims appeared incongruent with the available country information, as will be explained in the following paragraphs.”[9]
And;
“103. In respect of his claims that he has been subsequently harassed and beaten by members of the Karuna group, the Tribunal accepts recent sources cited above indicate that the Karuna group continues to be implicated in abductions, killings and criminal enterprises. In particular, the Danish Immigration Service (DJS) quoted that paramilitary groups are now engaged in criminal activities, including kidnappings and abductions for ransom. The Tribunal notes that the report of the asylum-seeker lobby group Still Human Still Here challenges the UK Home Office argument that ongoing paramilitary abductions in Sri Lanka are primarily financially motivated (i.e. for ransom). The Tribunal found the applicant’s claim that he had been attacked and harassed by the Karuna group to be unconvincing. The Tribunal found his evidence to be confused and inconsistent, and further, it does not accept that the applicant would not have raised the question of an attack by the Karuna earlier in his application process had such an attack occurred. The Tribunal considers the applicant embellished his claim that he had been beaten or attacked by the Karuna and rejects that he has been attacked as claimed. Notwithstanding, the Tribunal assessed the chances that the applicant may be targeted for harm by the Karuna, and having regard to all the evidence, including the evidence that the applicant’s forced association with the LTTE ended in the early 1990’s, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm at the hand of the Karuna group should he return to Sri Lankan (sic) now or in the reasonably foreseeable future.”[10]
[9] Refugee Review Tribunal Decision Record dated 19 April 2013 at [96].
[10] Refugee Review Tribunal Decision Record dated 19 April 2013 at [103].
The Applicant argues paragraphs 96 and 103 of the Tribunal’s Decision Record as referred to in the preceding paragraph are inconsistent with each other as to findings concerning the Applicant’s credibility, and further that the Tribunal’s findings are ambiguous and left unresolved.
The First Respondent argues in defence of the Applicant’s claim (that the findings of the Tribunal were unreasonable or irrational) that such claim needs to be set in proper context. Once that is done, upon a fair reading of paragraphs 101 to 105 inclusive of the Decision Record, under the heading “Fear of harm for reasons of actual or imputed political opinion for association with the LTTE”, and looking to the Tribunal’s reasons as a whole, there is no jurisdictional error of unreasonableness or illogicality. Further, this is not a decision that “no rational or logical decision-maker could have arrived at on the same evidence”.[11] The Court accepts that there is no jurisdictional error on this basis.
[11] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.
The Court further accepts and adopts the further submissions of Counsel for the First Respondent in the Tribunal’s consideration of this matter as set out in paragraphs 11, 12 and 13 of the First Respondent’s Further Submissions filed 4 August 2014 which are as follows:-
“11. Once the applicant’s explanation is considered, [96] of the Tribunal’s reasons demonstrates that the Tribunal accepted that the failure to mention the Karuna group was a misconceived attempt to throw light on who was behind the incident, and amounted to no more than a guess as to the identity of the assailants, and for that reason the Tribunal would not make an adverse credibility finding. Significantly, however, at that point the Tribunal was left with evidence from the applicant that he did not know the identity of the attackers and had guessed they were from the Karuna group.
12. In [103] of its reasons the Tribunal deals with and rejects the Karuna group claims. It does so, not because it has formed a negative view about the applicant’s credibility, but because the Tribunal was unconvinced by the applicant’s evidence, which it found to be “confused and inconsistent”. The Tribunal was buttressed in its conclusion that the Karuna group did not attack the applicant because the claim was not made earlier during the visa process. That did not rely on any inference about the applicant’s credit rather it followed from a process of reasoning based on an assessment of the weight to be placed upon material before the Tribunal. In any event, the only evidence to support the fact that the Karuna group had attacked the applicant was undermined by the applicant’s subsequent submission that he did not know the identity of his attackers and had guessed they were from the Karuna group. In those circumstances, the Tribunal’s finding that the applicant had “embellished his claim that he had been beaten or attacked by the Karuna” that he had “not been attacked as claimed” cannot be impugned on the grounds of unreasonableness or irrationality.
13. Further, the Tribunal goes on to consider whether, in light of its other findings, the evidence and the country information, there was any basis for the applicant to fear harm from the Karuna group in the future and concluded that there was not. Again, in light of the applicant’s evidence that he did not know the identity of his attackers, this finding of the Tribunal cannot be impugned as unreasonable or irrational.”
The weight that the Tribunal gives to evidence and its assessment of the evidence is for the Tribunal to determine as part of its fact-finding function.[12] In this case, in light of the country information, the Tribunal’s other findings about the Applicant’s claims and the Applicant’s own evidence that he did not know the identity of his attackers and had guessed they were from the Karuna group, the Tribunal’s findings about the Karuna group were clearly open to it. A proper process of reasoning was followed in relation to the totality of the evidence before the Tribunal and its conclusion did not rely on an adverse credit finding.
[12] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 10 at [11]-[13].
The application shall be dismissed and costs follow the event.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 27 November 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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Statutory Construction
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