AAQ15 v Minister for Immigration & Anor (No.2)
[2016] FCCA 972
•27 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAQ15 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2016] FCCA 972 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R |
| Cases cited: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Shrestha v Minister for Immigration [2015] FCAFC 87 |
| Applicant: | AAQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 455 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms N Blake of Clayton Utz |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 455 of 2015
| AAQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 4 February 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Sri Lanka. His claims for protection appeared to be based on his asserted membership of the particular social group of goldsmiths. Those claims were also interwoven with his Tamil ethnicity. Background facts relating to the applicant’s claims and the decision of the tribunal on them are set out in the Minister’s submissions filed on 20 April 2016.
The applicant is a citizen of Sri Lanka.[1] On 1 July 2012, he arrived in Australia as an unauthorised maritime arrival.[2]
[1] Court Book (CB) 13.
[2] CB 14, 137 [3].
On 16 November 2012, the applicant applied for a protection visa.[3] On 8 January 2014, the Minister’s Delegate refused to grant the protection visa.[4]
[3] CB 1 - 64.
[4] CB 85 - 108.
On 23 January 2014, the applicant applied to the Tribunal for review of the Delegate's decision.[5] On 2 January 2015, the applicant submitted pre-hearing submissions to the Tribunal.[6] On 8 January 2015, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant was assisted by an interpreter in the Tamil and English languages.
[5] CB 109 - 115.
[6] CB 125 - 129.
On 4 February 2015, the Tribunal affirmed the Delegate's decision refusing the protection visa.[7]
[7] CB 136 - 148.
On 25 February 2015, the applicant commenced judicial review proceedings in this Court. On 19 March 2015, the Court summarily dismissed the applicant's application at the first court date.[8]
[8] See AAQ15 v Minister for Immigration & Anor [2015] FCCA 645.
On 16 April 2015, the applicant filed an application for extension of time and leave to appeal in the Federal Court. On 13 August 2015, Justice Griffiths made orders by consent remitting the matter to this Court, differently constituted, on the basis that the Court erred in summarily dismissing the proceedings at the first court date without prior notice to the applicant, in the manner and circumstances identified in Shrestha v Minister for Immigration[9] and SZWBH v Minister for Immigration[10].
[9] [2015] FCAFC 87.
[10] [2015] FCAFC 88.
The applicant's claims
The applicant's claims for a protection visa revolve around an alleged incident in which he was robbed of gold by Sri Lankan soldiers, and alleged subsequent events. In the statement dated 25 October 2012 accompanying his application for a protection visa,[11] the applicant claimed that:
a)prior to leaving Sri Lanka, he worked at his brother's jewellery business in Colombo;[12]
b)in October 2011, he was assaulted and robbed of the gold that he was carrying at a military checkpoint. He was asked to hand over his ID and mobile telephone. Before these items were returned, he believes that his address and telephone number were recorded by the soldiers (October 2011 incident);[13]
c)in January 2012, he received a mysterious telephone call in Sinhalese. He believes that the soldier called him in order to confirm that he lived at the address he had provided during the October 2011 incident;[14]
d)after he left Sri Lanka for Australia, two Singhalese men (whom he believes to be army officers) went to his home and asked his mother about his whereabouts. She told them that he was in Colombo. The applicant believes these men intend to extort and abuse him;[15] and
e)the army would subject him to extortion, abuse, mistreatment, humiliation and degrading treatment if he were to return to Sri Lanka. The applicant believes this is because he is a Tamil whom the army knows to be in possession of gold.[16]
[11] Supplementary Court Book (SCB) 1 - 3.
[12] SCB 1 [8].
[13] SCB 2 [10] - [11].
[14] SCB 2 [14] - [15].
[15] SCB 2 [16].
[16] SCB 3 [18] - [19].
The account provided by the applicant in his 25 October 2015 statement was elaborated and expanded upon in the course of his claims made at the departmental interview, his Tribunal hearing, and also in the submissions made on his behalf by the Refugee Advice and Casework Service dated 20 February 2013,[17] and 2 January 2014.[18] He made the following additional claims:
a)internal relocation would not be reasonable because the nature of his work requires him to travel to and from his village to collect gold. He knows no other trade and would not be able to acquire different work in Colombo;[19]
b)he fears that if he were to return to Sri Lanka he would be subjected to violence or physical ill-treatment by individuals or groups involved in attacks directed at Tamils;[20] and
c)he faces a risk of harm as a failed asylum seeker.[21]
[17] CB 68 - 71.
[18] CB 125 – 129.
[19] CB 69 - 70.
[20] CB 127 [1.2] - [1.3].
[21] CB 127 [2.2].
The Tribunal's findings
The Tribunal did not accept that the applicant is a person to whom Australia has protection obligations on Convention grounds or complementary protection grounds (ss.36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act), respectively). This was because, despite accepting certain aspects of the applicant's evidence, certain other aspects were inconsistent or implausible. The Tribunal had concerns about the applicant's credibility and did not believe significant parts of the applicant's claims. In particular:
a)in his original statement to the Department, the applicant claimed that there were multiple soldiers who assaulted him in the October 2011 incident. He stated that the soldiers told him that they would keep the gold and cause greater problems for him if he complained. At the Tribunal hearing he said that only one soldier assaulted him and that the he did not understand what the soldiers had said because they spoke Sinhalese;[22]
b)the applicant was unable to name the checkpoint at which the October 2011 incident allegedly occurred. The Tribunal found this "somewhat concerning" in light of the alleged events and his claim to have passed the checkpoint on a number of occasions between 2002 and 2012;[23]
c)in his original statement, the applicant had stated that he and his brother were forced to use their own gold to make jewellery for the clients whose gold had been stolen in the October 2011 incident. However, he told the Tribunal that he and his brother had purchased gold for that same purpose;[24]
d)the applicant had allegedly passed the same checkpoint carrying gold following the October 2011 incident. The Tribunal considered it "somewhat implausible" that the applicant would continue to expose himself to the same risk in the circumstances;[25]
e)assuming his account was true, the Tribunal considered the applicant's explanation for why the Sinhalese soldier had telephoned him was "far-fetched";[26]
f)the applicant's evidence about the number of soldiers who visited his family after the October 2011 incident, how many times they visited and whom they spoke to changed over time;[27]
g)the applicant had limited technical knowledge about working with gold and his passport specified that he was a “waiter”. This was inconsistent with his claim to have worked in this field since leaving school;[28] and
h)the Tribunal noted the applicant's submission that he would not be able to move freely within Sri Lanka, and would have to modify his behaviour to avoid persecution. However, the Tribunal determined, in light of the applicant's written and oral evidence, that the applicant had enjoyed freedom of movement within Sri Lanka over a significant period during and after the civil war.[29]
[22] CB 137 [7] - 138 [9].
[23] CB 138 [10].
[24] CB 138 [11].
[25] CB 138 [12].
[26] CB 139 [13].
[27] CB 139 [14] - 140 [16].
[28] CB 140 [17].
[29] CB 141 [20].
Overall, the Tribunal was not satisfied that the applicant had a well‑founded fear of Convention-related persecution in Sri Lanka.[30] This was because:
a)lack of credibility: The Tribunal found the applicant's evidence to be "overwhelmingly untruthful".[31] The inconsistencies detailed above caused the Tribunal to dismiss the applicant's claims about the October 2011 incident and all the events that allegedly ensued as "a concoction";[32]
b)status as a “goldsmith” or person “in possession of wealth”: The Tribunal accepted that the applicant was a goldsmith who had sometimes worked with valuable amounts of gold and jewellery. However, the Tribunal was not satisfied on the evidence before it that the applicant's status as a “goldsmith” or “person who might be perceived to possess wealth” gave rise to a real chance of persecution in Sri Lanka;[33]
c)status as a Tamil, Tamil male or young adult Tamil male: The Tribunal considered the applicant's suggestion that his claim was Convention-related because the soldier(s) concerned would not treat a Sinhalese person the way he had been treated. However, having regard to the facts, the Tribunal was not satisfied that a Convention-related factor was "an essential and significant factor in the harm he claims to fear".[34] The Tribunal referred to country information in addition to the applicant's own evidence, and concluded that the applicant would not face a real chance of serious harm for reasons of being a Tamil, Tamil male or young adult Tamil male;[35]
d)status as an illegal departee: the Tribunal noted that the applicant claimed to have left Sri Lanka illegally. Although the applicant stated that he did not fear harm on this basis, the Tribunal examined country information indicating that returnees who left the country in breach of Sri Lanka's immigration laws are routinely arrested at the airport, held on remand for a few days, brought before a Court, granted bail, fined and questioned on return to their home area. However, it found that the immigration laws were of general application and applied in a non-discriminatory manner. It did not accept that the conditions which the applicant might face in detention amounted to significant harm or serious harm so as to satisfy s.91R(2);[36] and
e)status as a failed asylum seeker: Despite his submissions dated 2 January 2014 making a bald reference to fearing persecution as a failed asylum seeker, the applicant did not make any claims in relation to this factor at or after the hearing. Nevertheless, the Tribunal considered this factor. On the basis of the country information, the Tribunal was not satisfied that the applicant would be persecuted for reasons of being a failed asylum seeker.[37]
[30] CB 145 [33].
[31] CB 141 [21].
[32] CB 141 [21].
[33] CB 142 [22].
[34] CB 141 [18].
[35] CB 144 [30].
[36] CB 142 [24], 143 [26] - 144 [29].
[37] CB 142 [24], 143 [26], [27].
The Tribunal was not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.[38] This was because:
a)having dismissed as a "concoction" the totality of the applicant's claims about the October 2011 incident and ensuing events, it was unnecessary for the Tribunal to assess these facts through the lens of complementary protection;[39]
b)for the reasons given in relation to Convention-related harm, the Tribunal was not satisfied on the evidence before it that the applicant faced a real risk of significant harm in relation to his profession as a goldsmith or perceptions that he deals with wealth,[40] or his being a 'failed asylum seeker';[41] and
c)the applicant did not identify any fears in relation to his status as an illegal departee. Nevertheless, the Tribunal examined country information and the evidence before it and determined that the applicant would not face any sanctions, treatment or other act/omission inconsistent with the Articles of the International Covenant on Civil and Political Rights, or satisfying s.36(2A), on the basis of this status.[42] The Tribunal was satisfied that any potential sanctions came within the exception set out in s.36(2B)(c).[43]
[38] CB 146 [42].
[39] CB 145 [35].
[40] CB 145 [36].
[41] CB 145 [37].
[42] CB 145 [38], 146 [40].
[43] CB 145 [39].
As a result, the Tribunal did not accept that the applicant was a person to whom Australia owed protection obligations on Convention or complementary protection grounds.
The present proceedings
These proceedings began with a show cause application filed on 25 February 2015. There is one ground in the application:
That the decision of the second respondent, the Refugee Review Tribunal member, was affected by a legal error.
The applicant continues to rely upon that application. He has not taken up the opportunity afforded him by procedural orders made by a registrar to file and serve an amended application or additional evidence. The application is supported by a short affidavit filed with it, which I received.
I also have before me as evidence the court book filed on 1 October 2015 and a supplementary court book filed on 12 April 2016.
Only the Minister prepared written submissions in accordance with the registrar’s orders.
I invited oral submissions from the applicant today. I drew to his attention my concern that the ground of review as expressed, and in the absence of particulars, is effectively meaningless. The applicant sought an adjournment. He told me that he has had difficulty obtaining legal assistance because of a lack of money. He told me that he has recently consulted a lawyer, who is considering his case. The purpose of the adjournment would, it seems, be to provide a further opportunity for that consideration.
I declined the adjournment application, on the basis that the applicant has already had ample opportunity to prepare for today’s hearing. The applicant was not able to advance any legal argument in support of his application. He made submissions relating to the removal of work rights on his visa, which apparently occurred early in 2015. He also made submissions concerning his inability to access free medical care. He also made submissions on legal costs in the event that he was unsuccessful.
On the principal issue before the Court, no argument of legal error is discernible by me. The Minister’s submissions have attempted to deal with the ground advanced by the applicant in the absence of particulars. I agree with those submissions.
In the absence of particularisation, it is not possible to say what "legal error" the applicant alleges affects the Tribunal's decision. What is clear, however, is that the pleaded ground has no substance and amounts to nothing more than an attempt by the applicant to prompt the Court to engage in impermissible merits review.
The Tribunal had close regard to the statement dated 25 October 2012 made by the applicant, and summarised and addressed the claims made out by the applicant in relation to:
a)the October 2011 incident;[44]
b)the January 2012 telephone call;[45] and
c)visits by Singhalese military men to his family.[46]
[44] CB 137 [7] - 138 [9].
[45] CB 138 [13].
[46] CB 139 [14] - [16].
In addition to the harms the applicant claimed to fear on the basis of the October 2011 incident and alleged subsequent events, the Tribunal squarely addressed the applicant's claims in relation to:
a)his freedom to travel within Sri Lanka;[47]
b)his status as a person in possession of wealth;[48]
c)his status as a failed asylum seeker;[49] and
d)his status as a Tamil, Tamil male or young adult Tamil male.[50]
[47] CB 141 [20].
[48] CB 142 [22].
[49] CB 142 [25] - [29].
[50] CB 144 [30].
The Tribunal also gave the applicant ample opportunity to discuss any feared harms not previously raised.[51] In addition to the applicant's claims, the Tribunal considered factors that had not been expressly raised by the applicant, but which may nonetheless give rise to protection obligations towards the applicant.[52]
[51] See eg CB 141 [19], 142 [23], [24].
[52] See eg CB 142 [24].
The Tribunal considered each claim made by the applicant by reference to the evidence advanced by the applicant and country information. Having done so, the Tribunal did not accept that the applicant was person to whom Australia owed protection obligations on Convention or complementary protection grounds. This was because of the inconsistencies and implausible elements in the applicant's evidence (which led the Tribunal to reject or disbelieve the applicant's account about the October 2011 incident and its aftermath), and the country information and evidence about the applicant's status (as a goldsmith/person in possession of wealth, illegal departee, Tamil/Tamil male/young adult Tamil male, or failed asylum seeker). It is relevant that the applicant was assisted in making his claims before the Tribunal by a solicitor, who made submissions on his behalf and attended the Tribunal hearing to support him.
The Tribunal's lack of satisfaction concerning the applicant's evidence as presented and the facts found by it are exclusively the domain of and matters for the Tribunal. It is not the function of the Court to re-exercise the Tribunal's fact-finding function[53]. That the applicant may disagree with the factual findings made by the Tribunal is not a proper ground of review.
[53] Kaur v Minister for Immigration & Anor [2014] FCCA 1282 at [32].
Moreover, the Tribunal's decision in this matter was largely based on an adverse credibility finding. Credibility findings are at the core of the Tribunal's jurisdiction[54]. A credibility finding is sound if it was:[55]
open to [the Tribunal] on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility.
It was just so in this matter.
[54] Minister for Immigration; ex parte Durairajasingham (2000) 74 ALJR 405 at [67].
[55] Kopalapillai v Minister for Immigration (1998) 86 FCR 547.
In the circumstances, the ground of review advanced by the applicant is incapable of establishing jurisdictional error and must fail.
I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity, but that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 May 2016
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