BZAFI v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 On 16 July 2013, the Refugee Review Tribunal ("the Tribunal") affirmed a decision of a delegate of the Minister for Immigration and Border Protection ("the Minister") to refuse the appellant a Protection (Class XA) visa. 2 The appellant then applied to the Federal Circuit Court of Australia for the issue of constitutional writs directed to the Tribunal. On 2 October 2014 the primary judge dismissed the application. This is an appeal against that judgment. 3 The notice of appeal sets out three grounds of appeal, but only two are pressed. Those grounds are that the primary judge erred by failing to find that: (a) the Tribunal had committed jurisdictional error by failing to consider relevant material, namely a document entitled "True extract from the Information Book of Negombo Police Station"; (b) the Tribunal committed jurisdictional error by failing to consider claims or integers of claims made by the appellant that he feared serious harm on account of his membership of particular social groups consisting of: (i) Tamils with familial links to persons suspected of associating with or supporting the Liberation Tigers of Tamil Eelam ("the LTTE"); (ii) people who had departed Sri Lanka illegally and sought asylum. 4 For the reasons that follow, I consider that the appeal should be allowed on the first ground.

The Tribunal's decision 5 The substance of the appellant's application for a protection visa is that he fears persecution by the Sri Lankan authorities for reasons of his race, imputed political opinion and membership of particular social groups. 6 The appellant claims that in 2004, when he was at school, he was harassed and beaten up by Sinhalese thugs because he is Tamil. He also states that in 2007 he and his friends were detained by police overnight and accused of supporting the LTTE and that he was assaulted and sexually abused. 7 The appellant claims that he is wanted by police in Sri Lanka on suspicion of terrorist activity and that he fears that he will be detained and tortured. The appellant states that he was sharing a house in Negombo with a man who was detained by the police in January 2008 and accused of being a spy for the LTTE. The appellant and his cousin were given a message that they were to present themselves at the police station. The cousin presented himself and was detained. The appellant, fearing detention and torture, fled and went into hiding. The appellant says that his cousin and the other man are still in detention, apparently on the basis that they are suspected of involvement in a suicide bombing attack on a government minister. 8 The appellant claims that the police came to his family's house in Negombo looking for him later in 2008. The appellant's father was twice taken to the police station and questioned. The appellant's father was told that he was being detained in place of his son. 9 The appellant claims that he received anonymous phone calls asking him about his knowledge of various people in the LTTE. The phone calls stopped after he changed his telephone number. 10 The appellant was able to obtain a passport in his own name and travel to India and back to Sri Lanka in 2010. In May 2012, the appellant travelled by boat to Australia. 11 In its reasons, the Tribunal indicated that it had significant concerns regarding the credibility of some aspects of the appellant's claims. Despite its concerns, the Tribunal was prepared to accept that he had been harassed and discriminated against while he was a school student. The Tribunal found that the appellant's claims in that regard did not amount to serious harm and was not "persecution" as defined in s 91R(1) of the Migration Act 1958 (Cth) ("the Act"). The Tribunal accepted that the appellant was sexually abused, threatened and bashed by a police officer in 2007 and that this amounted to serious harm. 12 However, the Tribunal noted that the appellant's claim to have a well-founded fear of persecution if he returns to Sri Lanka is based on his claim that he is wanted by the authorities and will be detained. In this regard, the Tribunal found: 81. The Tribunal accepts that the applicant's cousin [name deleted] and his friend [name deleted] may have been detained in January 2008 on suspicion of assisting the LTTE. The Tribunal accepts that other members of [name deleted] extended family may also have been questioned. However the Tribunal does not accept that the Sri Lankan authorities continued to search for the applicant from January 2008 onwards and that he remains a person who they wish to question or detain or a person they will subject to serious harm if he returns to Sri Lanka. 13 The Tribunal reached this conclusion because it considered that the appellant's claim that he is wanted by the police was not credible. The Tribunal reasoned that if the appellant was wanted by the police, he would not have been able to obtain a passport issued in his own name or have been able to travel to India. The Tribunal also reasoned that if he had received the threatening telephone calls as he claims, it is likely that the authorities would have been able to track him down. The Tribunal also considered that if he genuinely had a fear of serious harm, he would not have returned to Sri Lanka from India in 2010. 14 The Tribunal concluded: 95. After assessing all the evidence before it the Tribunal does not accept that the applicant is a person in whom the Sri Lankan authorities have an interest as they suspect him of being associated with the LTTE and associated with two people detained in connection with the killing of a Sri Lankan Government Minister in April 2008. This claim is central to the applicant's claims of fearing serious harm for a Convention reason on return to Sri Lanka. As the Tribunal does not accept this claim, it follows that the Tribunal also does not accept that the authorities asked the applicant to attend the police station in January 2008; that his cousin is in jail and warned that the applicant was suspected of being connected with the LTTE and would be detained and tortured if captured; and that the authorities searched for the applicant everywhere and questioned relatives and friends about his whereabouts. … 97. After assessing all the evidence the Tribunal finds that the applicant does not face serious harm because of imputed political opinion, or his Tamil ethnicity, or his membership of a particular social group in the reasonably foreseeable future in Sri Lanka. The Tribunal finds the applicant does not have a well-founded fear of persecution in Sri Lanka for a Convention reason and does not satisfy the refugee criterion at s.36(2)(a) of the Act. 15 The Tribunal also found that the appellant did not meet the complementary protection criterion in s 36(2)(aa) of the Act. 16 The focus of the first ground of the present appeal is on whether the Tribunal considered the document entitled "True extract from the Information Book of Negombo Police Station". The Tribunal did refer to that document. It said: 67. Subsequent to the hearing the applicant's representative provided a brief submission and the following documents: a letter in support of the applicant's claim that his family is unable to return to the land they own in Jaffna; Extract from Information Book dated 3 June 2008 in support of claim that the applicant's father was detained and questioned by the Sri Lankan authorities; letter from the applicant's cousin [name deleted] dated 15 February 2009; letter from the Terrorism Investigation Unit and letters from the applicant's former employers. (Underlining added) 17 The English translation of the document in evidence is as follows: 18 The extract of the entry in the Information Book names the appellant and says he "is wanted by the police on suspicion of terrorism." The extract also indicates that police had taken the appellant's father into custody on two occasions when the appellant was not located at his father's house. Apart from para [67], the Tribunal's reasons do not contain any specific reference to the extract from the Information Book.