CTP15 v Minister for Immigration & Anor [2017] FCCA 1484 (30 June 2017)

Last Updated: 3 July 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTP15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1484

Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – application for a Protection (Class XA) visa – applicant claiming a fear of harm in Sri Lanka – no jurisdictional error.

Legislation: Migration Act 1958 (Cth), s.36(2)

Applicant:

CTP15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 1176 of 2015

Judgment of:

Judge Jarrett

Hearing date:

17 June 2016

Date of Last Submission:

17 June 2016

Delivered at:

Brisbane

Delivered on:

30 June 2017

REPRESENTATION

The Applicant appearing in person

Solicitors for the Respondents:	Clayton Utz
The Second Respondent entered a submitting appearance

ORDERS

(1) The application for review filed 18 December, 2015 be dismissed.
(2) The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,010.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE

BRG 1176 of 2015

CTP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent dated 30 November, 2015 whereby the Tribunal affirmed a decision of a delegate of the first respondent made on 15 October, 2013 to refuse to grant the applicant a Protection (Class XA) visa.
2. The first respondent opposes the application and the second respondent enters a submitting appearance.
3. For the reasons that follow, I do not think that the applicant’s arguments reveal that the Tribunal has fallen into jurisdictional error in the way alleged, or at all.

Background

4. The applicant claims to be a citizen of Sri Lanka who entered Australia as an unlawful maritime arrival on 16 July, 2012. On 8 November, 2012 he made an application for a Protection (Class XA) visa.
5. On 15 October, 2013 a delegate of the first respondent refused to grant the applicant the visa. The applicant sought review of the delegate’s decision by the second respondent on 21 October, 2013.
6. The applicant came before a differently constituted Tribunal on 10 March, 2015 and again on 10 April, 2015 to give evidence and present arguments. That Tribunal made no decision in the applicant’s case. On 10 November, 2015 a fresh hearing of the application was undertaken by a newly constituted Tribunal and it is the decision of that Tribunal that the applicant seeks to now have reviewed.
7. The applicant appeared at the latest hearing by video link with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. He was represented by a registered migration agent.
8. The applicant claimed to have a well-founded fear of persecution by reason of:
   1. his Tamil ethnic extraction;
   2. the perception that he has an imputed political opinion of being opposed to the Tamil Makkal Viduthalai Pulikal;
   100. his membership of a particular social group, that is a Tamil who had sought employment with the government; and
   4. his status as a failed asylum seeker.
9. The applicant claimed that Tamils in Sri Lanka continue to suffer a level of violence and discrimination that amounts to serious harm. The applicant claimed that this was not able to be reduced through relocation or state protection and was likely to persist into the reasonable future. In support of this claim, the applicant relied on the second annexure to his submissions before the Tribunal which dealt with the issue of persecution of Tamils in Sri Lanka. Contained in that annexure was a 2014 DFAT report, a review of relevant country information from various international and state bodies and an analysis of the implications of the election of the new president.
10. The applicant claimed that members of the Tamil Makkal Viduthalai Pulikal had abducted him and assaulted him in an attempt to recruit him. He claimed that he was grabbed by two men in a white van, taken to the Tamil Makkal Viduthalai Pulikal office in Kaluthavalai, tied up, blindfolded, threatened and questioned. He claimed they tortured him, held a gun to him and “smashed” his head. He claimed that he managed to escape and run to his uncle’s house where he hid for two weeks before leaving the country. He claimed that a week later members of the Sri Lankan intelligence, Sri Lankan army and Tamil Makkal Viduthalai Pulikal interrogated and demanded money from his father. He claimed his father had also received two letters threatening to kill his family if the applicant did not report to the Tamil Makkal Viduthalai Pulikal.
11. At a late stage in the Tribunal hearing, the applicant made an additional claim to fear harm from the Karuna Group. However, the applicant did not provide any details in support of this claim other than to say that the Karuna Group would wonder why he had escaped the Tamil Makkal Viduthalai Pulikal.
12. The applicant claimed that he feared being killed, tortured, kidnapped or seriously harmed by the Tamil Makkal Viduthalai Pulikal because he was Tamil and as a Tamil who wanted to work as a police officer, he could be perceived as having a pro-government political opinion. In support of this claim he asserted that when he was abducted and questioned by the Tamil Makkal Viduthalai Pulikal they said words to the effect of “why did you apply for the police?” and “being a Tamil you should be on our team and not with the police.”
13. The applicant also claimed that he feared being killed, imprisoned or tortured by the Sri Lankan authorities because he would return to Sri Lanka as a failed asylum seeker. In support of this claim the applicant relied upon the annexures to his submissions before the Tribunal which contained country reports indicating that failed asylum seekers were being persecuted on their return to Sri Lanka and that the new president had a “concerning record” with human rights violations. The applicant claimed that in the event he returned to Sri Lanka, he would be detained and charged for illegally and unlawfully leaving the country. He claimed his family would not act as guarantor for his bail or collect him from police custody. He further claimed that because he left Sri Lanka illegally and sought asylum in a western country, he could be perceived to have an imputed political opinion of being pro-Liberation Tigers of Tamil Eealam or opposed to the Sri Lankan government.
14. The applicant claimed that relocation to Columbo would not be a viable option because he would have to register and explain why he was there, he would have nowhere to stay, he would have no friends and he would have trouble with the Sinhalese people and their language. He further claimed that the Makkal Viduthalai Pulikal could harm him anywhere in the country.

The Tribunal’s decision

15. The Tribunal, after considering the evidence, the country information available to it and the applicant’s submissions, did not accept that the applicant had a well-founded fear of persecution if he were to return to Sri Lanka on the basis of his Tamil ethnicity. The Tribunal found that claim to be contrary to the country information, noting that the applicant did not have any risk profile identified by the 2012 UNHCR eligibility guidelines.
16. The Tribunal did not accept that the applicant had a well-founded fear of harm from the Makkal Viduthalai Pulikal or the Karuna Group on the basis of his perceived political opinion of being opposed to the Makkal Viduthalai Pulikal.
17. The Tribunal did not accept that the applicant was abducted, detained, questioned or harmed by the Makkal Viduthalai Pulikal and that he had escaped. The Tribunal did not accept, after considering the evidence and the applicants credibility, that the applicant’s father was questioned or harmed by the Makkal Viduthalai Pulikal or that the applicant’s father had received threatening letters from the Makkal Viduthalai Pulikal.
18. While the Tribunal accepted that the applicant had involved himself in a process in an effort to join the Sri Lankan police, it had difficulty accepting the applicants claim that the Makkal Viduthalai Pulikal would seek to harm him on this basis.
19. The Tribunal did not accept that the applicant had a well-founded fear of persecution if he were to return to Sri Lanka on the basis of his status as a failed asylum seeker. The Tribunal did accept that the applicant had left Sri Lanka unlawfully and that upon his return it was highly likely that he would be charged with an offence under the Immigrants and Emigrants Act of Sri Lanka. The Tribunal also accepted that prison conditions in Sri Lanka are poor. However, it was not satisfied that such conditions would amount to significant harm. Further, the Tribunal found it reasonable to assume that because of the financial assistance the applicant had received from his family in the past, the applicant would have a family member who would be prepared to act as guarantor and collect him from police custody if required. The Tribunal acknowledged that while the 2012 UNHCR eligibility guidelines did indicate that persons associated or perceived to be associated with the Liberation Tigers of Tamil Eealam may be at risk of harm, the applicant had not been involved in any political activities in Sri Lanka whatsoever and therefore did not have such a link.
20. In its reasons for decision the Tribunal expressed that it had some broad concerns with the applicant’s credibility. It was concerned about the mistakes that were made in relation to the references to the documents contained in the applicant’s submissions and the failure to provide the Tribunal with English language translations of his supporting documents. Translated documents were eventually provided to the Tribunal some weeks after the conclusion of the hearing.
21. The Tribunal expressed some difficulty accepting the applicant’s claims as credible and noted multiple inconsistencies in the applicant’s evidence.
22. On 30 November, 2015 the Tribunal affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

Grounds of Review

23. The applicant pursues only one ground of review as set out in his application for review filed on 18 December, 2015. He submits that the Tribunal’s consideration of whether he faced harm on the basis of his Tamil ethnicity was limited to the Makkal Viduthalai Pulikal and his interest in joining the Sri Lankan Police Force. The applicant submits that the Tribunal failed to consider whether the applicant could suffer persecution, serious or significant harm on the basis of his Tamil ethnicity throughout Sri Lanka. The applicant argues that by failing to consider every integer of his claim, the Tribunal fell into jurisdictional error by failing to carry out its statutory task under s.36(2) of the Migration Act 1958.
24. The first respondent contends that the applicant’s ground of review is without merit. The first respondent submits that the Tribunal did, in fact, carefully consider all of the applicant’s claims but rejected them having regard to the applicant’s credibility and current country information.
25. The first respondent directs my attention to paragraphs 11, 22, 46, 47, 50, 53, 56, 61, 62, 63, 70, 72, 76, 77, 78 and 79 of the Tribunal’s reasons.
26. Relevantly the Tribunal said (my emphasis):
    • 46. The Tribunal raised country information contained in two DFAT reports relating to Sri Lanka. One report was the DFAT country report for Sri Lanka dated February 2015. The other report was the DFAT thematic report dated October 2014 for people with links to the LTTE. The Tribunal also referred to information relating to the TMVP and Karuna groups in Sri Lanka. The Tribunal, in summary, noted in relation to the country report various issues relevant to the applicant’s claims and including that as at February 2015 the Sri Lankan government was publicly claiming that involvement of the military in civilian activities in the north of Sri Lanka had ceased. The report indicated that a survey that had been undertaken by a group within the Australian National University found that an overwhelming majority of those who intended to leave Sri Lanka and travel to Australia by irregular means cited economic reasons for the decision. The report also indicated that the security situation in Sri Lanka had greatly improved since the end of the conflict in 2009 and that this included in the north and east of the country which is the traditional Tamil homeland. The report indicated that the Department assessment was that there were no official laws or policies that discriminate on the basis of ethnic extraction or language in Sri Lanka and that there is only a low level of discrimination in the implementation of laws and policies. The report also indicated that historically many Tamil people had faced barriers to education and employment and that this had caused a sense of discrimination among Tamil people. However successive Sri Lankan governments had made some efforts to redress these ethnic and linguistic tensions. The report also referred to the difficulty that some Tamil speakers might have in communicating with Sinhalese authorities in terms of language problems but that those practical difficulties were not due to official discrimination as such. The report also noted that many Tamils particularly in the north and east of Sri Lanka had expressed a fear of monitoring and harassment and arrest and detention by security forces and that this activity was largely due to LTTE members and supporters almost all being Tamil. However the report noted that the cessation of the forced registration of Tamils suggested that the trend of monitoring and harassment of Tamils in day-to-day life had generally eased since the end of the conflict.
    • ...
    • 61. The applicant’s claims to fear harm are referred to elsewhere in these reasons. The Tribunal has considered the applicant’s claims that he fears harm on the basis of his Tamil ethnic extraction. He claimed to fear harmed because he is a Tamil person and because he was abducted by Tamil people (in terms of his claims about the TMVP). The Tribunal has considered the applicant’s evidence and has also had regard to available and relevant country information and submissions made on the applicant’s behalf. The Tribunal accepts that the two DFAT reports that have been referred to in these reasons provide comparatively recent and credible country information relevant to the applicant’s claims. The Tribunal notes the country information that has been referred to and including the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka. Those guidelines as indicated do not nominate Tamil people as being at risk per se on that basis. They do link the risk to people to factors such as a real or perceived link to the LTTE. The applicant has no such link and as indicated has not been involved in any political activities in Sri Lanka. The country information contained in the DFAT country report indicates that successive Sri Lankan governments have made some efforts to address ethnic and linguistic tensions in relation to historical conflict between Tamil and Sinhalese people and including dealing with the barriers that many Tamil people faced in relation to education and employment. The country report also indicated that as at February 2015 the new government was publicly claiming that the involvement of the military in civilian activities in the North of Sri Lanka had ceased.
    • ...

63. The Tribunal after considering the evidence and the country information and the submissions made on the applicant’s behalf does not accept that the applicant has a well-founded fear of persecution if he returned to Sri Lanka either now or in the reasonably foreseeable future on the basis of his Tamil ethnic extraction. The Tribunal does not accept that the evidence and available and relevant country information that has been referred to supports the applicant’s claims in relation to this issue.

27. It is clear from the Tribunal’s reasons that it did consider the applicant’s fear of harm throughout Sri Lanka by reason of his Tamil ethnicity and having regard to the evidence before it, including the country information, found that there was no risk of persecution or real harm on the basis of his Tamil ethnicity. In reaching this conclusion, the Tribunal considered two DFAT reports as well as the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka. Those guidelines did not nominate Tamil people as being at risk on the basis of their Tamil ethnicity.
28. What the Tribunal does with the information before it, how it uses it, what weight it gives it and what influence it might be permitted to have on the Tribunal’s determinations, are matters entirely for the Tribunal. It is not something, generally speaking, in respect of which this Court can interfere. The information taken into account by the Tribunal was used by it in the way in which the Tribunal saw fit. There is no reason to think that the way in which the Tribunal used that information led it into error, let alone jurisdictional error.
29. Nothing has been demonstrated in argument which would suggest that the Tribunal has fallen into jurisdictional error by failing to take into account a relevant consideration.

Conclusion

30. In my view, the application for review reveals no jurisdictional error on the part of the Tribunal. The application for review must be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 30 June, 2017.

Date: 30 June 2017