AAE15 v Minister for Immigration

[2016] FCCA 1852

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAE15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1852

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – no grounds of jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 32(2A), 36(2B)(c), 46A(2), 91R(1)(c), 424A, 425 Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: AAE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 353 of 2015

Judgment of: Judge Hartnett

Hearing date: 14 April 2016

Delivered at: Melbourne

Delivered on: 22 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Hands

Solicitors for the Applicant: Mano Associates

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 353 of 2015

AAE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application dated 25 February 2015 which seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 2 February 2015.  The Tribunal affirmed a decision by a delegate of the First Respondent not to grant the Applicant’s Protection (Class XA) visa (‘the visa’).  The application seeks relief in the form of constitutional writs against the Tribunal decision.

2. The grounds of the application, as set out in the Applicant’s amended application filed 1 April 2016,  are as follows:-

   “1. The Tribunal erred jurisdictionally by not assessing the applicant’s integer claim of imputed supporter of or links to the LTTE even though it accepted that his sister was a member of the LTTE ( CB 142)

   2. The Tribunal acted unreasonably which resulted in the breach of section 414 of the Migration Act.

   3. The Tribunal breached section 424A of the Migration Act.

   4. The Tribunal was obliged to put the applicant on notice of its concerns but it acted in haste by rejecting his application on the same day of the hearing and thereby breached procedural fairness. ( CB 213 & CB 234)

   5. The Tribunal applied the wrong test when it assessed part of the applicant’s claim and thereby fell into jurisdictional error.

   6. The Tribunal has not assessed the applicant’s claim cumulatively of being a Young Tamil fisherman from the North of Sri Lanka of Hindu faith with perceived links with LTTE and belong to a group where a member of his family was known (sic) LTTE cadre.” 

3. Ground five above alleges that the Tribunal applied the wrong test. The Supplementary Court Book was filed, consisting of a Transcript of the proceedings before the Tribunal, in support of this ground. The relevant part of the Transcript showed the Tribunal putting to the Applicant the relevant country information on which it relied. On the hearing of this matter on 14 April 2016, that ground was no longer pressed by the Applicant. It did not establish jurisdictional error in the decision of the Tribunal.

4. The First Respondent seeks dismissal of the application and costs in the event of such dismissal. The First Respondent relies upon his response to application filed 25 March 2015.

5. Each of the parties filed submissions. The submissions of the Applicant were filed on 1 April 2016 and those of the First Respondent were filed on 9 March 2016 with further submissions being filed on 6 April 2016.  The Court also had before it the evidence as contained in the Court Book filed by the Respondent on 28 April 2015 and that of the Supplementary Court Book filed by the Applicant on 1 April 2016.

6. The matter was listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on 18 March 2016. The matter was adjourned for a final hearing (as a consequence of the filing of the amended application) on 14 April 2016.

History

1. The Applicant was born on 5 December 1983 in Supparmadam, Point Pedro, Jaffna in the Northern Province of Sri Lanka. The Applicant is a citizen of Sri Lanka and a Tamil of Hindu faith. Prior to travelling to Australia, he was employed as a fisherman. The Applicant illegally left Sri Lanka by boat in late June 2012.

2. On 14 July 2012, the Applicant arrived on Christmas Island as an undocumented irregular maritime arrival. On 10 October 2012, he was interviewed by an officer of the Department of Immigration and Citizenship (as it then was) (‘the Department’). On the same day a delegate of the First Respondent gave the Applicant notice of the First Respondent’s decision to exercise his power under sub-s.46A(2) of the Migration Act 1958 (Cth) (‘the Act’), allowing the Applicant to apply for a protection visa. The Applicant was provided with representation by a migration agent from BMA Lawyers pursuant to the Immigration Advice and Application Assistance Scheme.

3. On 10 December 2012, the Applicant lodged his application for the protection visa. By decision of 23 September 2013, a delegate of the First Respondent (‘the delegate’) refused to grant the Applicant the protection visa. Notification of that refusal was given to the Applicant’s authorised recipient by correspondence of 9 October 2013. On 15 October 2013, the Applicant applied to the Tribunal for merits review of the delegate’s decision. The Applicant’s authorised recipient provided written submissions to the Tribunal on 27 March 2014.

4. On 2 February 2015, the Applicant appeared before the Tribunal to give evidence and present arguments about the issues arising in his case. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The Applicant’s registered migration agent represented the Applicant in relation to his review application.

5. The Tribunal notified the Applicant of its decision, dated 2 February 2015, by email on 3 February 2015.  On 25 February 2015, the Applicant lodged his application for judicial review of the Tribunal’s decision.

The Tribunal Decision 

1. The Applicant’s claims as set out in paragraphs 21 to 24 of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) were as follows:-

   “21. … He is a Tamil born in Suppermadam, Point Pedro in 1983. He has never married and has no children. His parents and siblings still live in Supparmadam. A sister of his joined the LTTE and was killed by a landmine in 1995. In 1996-97 and 2004-09 his family were displaced into camps in Mullaitivu. He was placed into the Kaithady displaced persons camp in Jaffna from March to October 2009. There he was interrogated by the CID and accused of being an LTTE member. He has been employed as a fisherman and arrived in Australia by boat in July 2012.

   22. Ever since he was young, the applicant was harassed by the authorities, particularly the CID. In around May 2009 he was stopped three times by the CID. He was interrogated, slapped, had his neck squeezed severely, handcuffed and punched in the stomach causing excruciating pain such that he could not walk. They accused him of being LTTE because of his sister. Every month since 2009 he has been forced to register at the army camp at Point Pedro. If he didn’t register, he feared he would be caught and bashed. They had killed so many Tamils that he complied. In 2011 they called him to the base and hit him with a baton on his shoulders and legs.

   23. The harassment continued until the time the applicant left Sri Lanka. The authorities would question him and ask him to identify LTTE people in his area. They would beat him up when he refused. The last such incident occurred a month before leaving Sri Lanka.

   24. The applicant has also claimed that he was beaten by the navy whilst fishing and that has occurred to his brother since he departed. He claims that since he departed the CID have come to his house on several occasions to ask about his whereabouts and that his brother has been detained, mistreated and forced to report because of the applicant.”  

2. The Tribunal found that the Applicant was not a credible witness, however did accept that the Applicant’s sister fought for the LTTE and died in 1995 when she stepped on a landmine; that the Applicant and his family were displaced throughout the civil war and were detained in a camp in 2009; that the Applicant was placed in the Kaithady camp in Jaffna and then released; and that the Applicant was questioned by authorities on several different occasions about his sister’s and his own involvement with the LTTE. Those claims were accepted by the Tribunal because in relation to them the Applicant was consistent and his claim to have been in a Kaithady camp was supported by documentary evidence.

3. The claims in relation to which the Tribunal was not satisfied, for significant credibility reasons, are relevantly set out in the First Respondent’s submissions as follows:-

   “7. The RRT found at [34] that the applicant was not a credible witness regarding his claimed mistreatment and continuing interest in him by the authorities. The RRT set out its reasons for this conclusion, which included inconsistencies in the applicant's evidence as to the number of times he had been questioned and assaulted; a claim raised for the first time at the hearing that he had been required to do physical training with the LTTE in 2007-8; and a view by the RRT that the applicant's claim of ongoing interest in his family was not credible.

   8. On the basis of its “significant credibility concerns” the RRT rejected the remainder of the applicant's factual claims regarding the CID at [35]. The RRT did not accept that the applicant was of any adverse interest to the authorities when he was released from the camp in October 2009. The RRT did not accept that the applicant was required to report or that he was detained, interrogated and physically mistreated on any occasion. The RRT did not accept that the authorities had visited the applicant's home or detained, questioned or mistreated his brother since the applicant had departed Sri Lanka. The RRT did not accept that the applicant was of any ongoing interest to the authorities or anyone else.”

4. In relation to the other claims made by the Applicant, the Tribunal found:- 

   a)the Applicant’s relationship to his sister did not lead to a real chance or risk that he would be suspected of links to the LTTE;

   b)the Applicant was not of adverse or significant interest to the Sri Lankan authorities as a suspected LTTE supporter or for any other reason;

   c)the Applicant did not face any real chance of persecution or a real risk of significant harm due to his Tamil race, being a young Tamil male, his family, being a Tamil fisherman, or his actual or imputed political opinion;

   d)the Applicant had not been mistreated by the Sri Lankan Navy since 1997;

   e)the Applicant would not be considered by authorities as an LTTE supporter, by virtue of him being a failed asylum seeker. However the Applicant may be subjected to questioning by the authorities, but that this did not constitute serious harm or significant harm;

   f)the Applicant would be punished for his illegal departure under the Immigration and Emigration Act of Sri Lanka and whilst the Applicant would not be given a custodial sentence, the Tribunal accepted that he would be detained for a short period of time prior to being granted bail. As this law is a law of general application, and not systematic and discriminatory conduct, it did not constitute persecution under s.91R(1)(c) of the Act. Further, any short term detention, questioning and the imposition of a fine did not amount to significant harm under s.32(2A) of the Act. As this is a real risk faced by the population, and not the Applicant personally, under s.36(2B)(c) of the Act this is taken not to be a real risk that the Applicant will suffer significant harm.

5. The Tribunal then carried out a cumulative assessment and said relevantly at paragraphs 63 and 64 of the Decision Record the following:-

   “63. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any reason (Convention or non-Convention related). His fear of persecution is not well-founded.

   64. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm.”

Grounds Two and Three

1. The Tribunal complied with its obligations under s. 425 of the Act to invite the Applicant to a hearing. No obligations under s. 424A of the Act arose in the circumstances of this matter. Section 424A of the Act is as follows:-

   “Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)  invite the applicant to comment on or respond to it.

   (2)  The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies--by one of the methods specified in section 441A; or

   (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (2A)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)  This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application for review; or

   (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)  that is non-disclosable information.

   (4)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”

2. The Applicant failed to particularise this ground. No information was relied upon by the Tribunal which enlivened its obligations under s.424A of the Act.

3. No particulars are provided by the Applicant as to the allegation the Tribunal acted unreasonably. The Tribunal did not do so in the processes it adopted nor in the logic applied to its reasoning as gleaned from a fair reading of the Tribunal decision.

4. These grounds are not made out.

Grounds One and Four

1. There is also no merit in these grounds. The Tribunal carefully considered the claims as put by the Applicant as to his being an imputed supporter of the LTTE and/or having links to the LTTE in particular by virtue of his sister’s accepted association with the LTTE. Ultimately the Tribunal rejected the Applicant’s claims for the reasons given in the Decision Record. Those reasons included an express finding that the Applicant’s relationship to his sister did not lead to a real chance or a real risk that the Applicant would be suspected of being linked to the LTTE. The findings made by the Tribunal were open on the evidence before it and no illogicality or unreasonableness attends the Tribunal decision. The Tribunal did not, as claimed, fail to consider country information, including that contained in the UNHCR Eligibility Guidelines dated 21 December 2012[1] which listed risk profiles of potential individuals who may be in need of international protection which included:-  

   [1] United Nations High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012.

   “…

   (6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles” (being profiles connected with the LTTE).

   The Tribunal expressly, in paragraph 46 of the Decision Record, stated “I accept that Tamils suspected of certain links to the LTTE (including persons with family links) are at risk upon return to Sri Lanka.” However the Tribunal found nonetheless that it was satisfied that the Applicant was now and in the reasonably foreseeable future of no “adverse interest to the authorities or anyone else” and that the Applicant was not at risk of harm due to his family link with his sister.

2. There was no breach of s.425 of the Act and the Applicant does not particularise any such breach. The making by the Tribunal of its decision on the day of the hearing does not, without more, go to the establishment of jurisdictional error by the Tribunal. It is not apparent that the Tribunal “acted in haste” in making its decision. The Applicant points to no matters which he contends needed to be raised with him at the hearing which were not. The Court has before it in evidence the transcript of the hearing. That transcript shows, as submitted by Counsel for the First Respondent, that the Tribunal traversed with the Applicant, at the hearing, all of the dispositive issues in the review.[2]

   [2] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.

Ground Six

1. The Tribunal considered cumulatively those matters which were applicable to the Applicant. That is that he was a Tamil; a fisherman; a Tamil who had a family member who had been involved in the LTTE; a Tamil failed asylum seeker and one who left Sri Lanka illegally.

2. The Tribunal did not accept that the Applicant had perceived links to the LTTE and that therefore was not a claim required to be considered cumulatively with his other claims. Although the Applicant claimed to be of Hindu faith he did not claim that caused him to be at risk of harm, either of itself or coupled with any of his other claims. As submitted by Counsel for the First Respondent, it is not open to the Applicant to now point to all of his personal attributes and allege that they need to be considered cumulatively by the Tribunal.

3. There is no jurisdictional error in the Tribunal’s decision and the application shall be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 22 July 2016