AAT15 v Minister for Immigration
[2018] FCCA 1516
•8 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAT15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1516 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – application for reinstatement of show cause application which had been dismissed on account of the applicant’s non appearance. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 424AA, 424A |
| Cases cited: AIR15 v Minister for Immigration [2016] FCA 1425 AIS15v Minister for Immigration [2016] FCA 978 BZAFM v Minister for Immigration [2015] FCAFC 41 Minister for Immigration v WZAPN (2015) 254 CLR 610 SZTAL v Minister for Immigration [2017] HCA 34 SZTAL v Minister for Immigration [2016] FCAFC 69 SZTEQ v Minister for Immigration [2015] FCAFC 39 SZTIB v Minister for Immigration [2015] FCAFC 40 WZAPN v Minister for Immigration [2014] FCA 947 |
| Applicant: | AAT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 443 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr K Eskerie of Sparke Helmore |
INTERLOCUTORY ORDERS
The application in a case filed on 14 May 2018 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 443 of 2015
| AAT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
I have before me an application in a case filed on 14 May 2018. That application seeks the reinstatement of a judicial review application filed on 24 February 2015 which I had dismissed on account of the applicant’s non‑attendance at a hearing on 3 April 2017.
The application is supported by an affidavit by the applicant filed with it. The affidavit is written in the English language and the applicant stated that he had not had it read to him. The Tamil interpreter booked for today’s hearing translated the affidavit for the applicant. He adopted it under oath and also augmented it with oral evidence. He was cross‑examined on the affidavit.
In addition to the court book filed in the principal proceedings, I received as exhibits a receipt from Mr Bodisco of counsel for $500, dated 25 March 2015, which I marked as exhibit A1 and a bundle of correspondence from the Minister’s solicitors to the applicant, which I marked as exhibit R1.
The background to this matter is set out in the Minister’s outline of submissions for the principal proceedings.
The applicant, a citizen of Sri Lanka, entered Australia on 13 June 2012 as an irregular maritime arrival.[1] On 23 October 2012, the applicant lodged a protection visa application,[2] which was refused by a delegate of the Minister (delegate) on 31 July 2013.[3]
[1] Court Book (CB) 42
[2] CB 23
[3] CB 129-159
The applicant sought review of the delegate’s decision by the (then) Refugee Review Tribunal (Tribunal) and, on 19 January 2015, attended a hearing before the Tribunal to give evidence and present arguments in relation to the decision under review.[4] On 29 January 2015, the Tribunal affirmed the decision under review.[5]
[4] CB 251-253
[5] CB 260-283
By an application to show cause, filed on 24 February 2015, the applicant sought judicial review of the Tribunal’s decision.[6] On 19 March 2015, at the first court date in this matter, a Judge of this Court made orders summarily dismissing the application. The applicant appealed against those orders and on 12 August 2015, the Federal Court (constituted by Griffiths J) made orders by consent remitting the matter to this Court.
[6] CB 161-165
Applicant’s claims
The applicant’s claims for protection centred on his Tamil ethnicity, his imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE), and his status as a failed asylum seeker who had departed Sri Lanka illegally. In summary, those claims were as follows:
a)in 2007, the applicant lived with his family in an LTTE-controlled area, Mullativu. The applicant worked with other Tamils to provide aid to people impacted by the war. However, the applicant was not associated with the LTTE;
b)also in 2007, the applicant discovered that his name had been put on a list of names that the Eelam People’s Revolutionary Liberation Front (EPRLF) intended to kill. The applicant suspected that his name was on the list due to his aid work, which he believed led people to think that he was committed to the LTTE;
c)the applicant and his family were displaced due to the war and had moved to a different region, Uduppu. The applicant and other Tamils had to register and then report to the army;
d)in 2010, the applicant’s wife returned to Mullativu. The applicant did not return with his wife because he feared the EPRLF. Whilst the applicant’s wife was in Mullativu, the authorities had asked her about the applicant’s whereabouts; and
e)in 2012, the applicant departed Sri Lanka because he feared for his safety. Whilst he had wanted to depart since discovering he was on the EPRLF list, he did not have any way of leaving.
At his Tribunal hearing, the applicant further claimed that the Sri Lankan Criminal Investigation Department (CID) had been looking for him since August 2013 and visited his family many times. The applicant further claimed that his father and brother were shot by the Sri Lankan Army because they were suspected of having LTTE links.
Tribunal decision
The Tribunal found that the applicant fabricated significant aspects of his claims and rejected those claims on the basis of comprehensive adverse credibility findings.[7] In so doing, the Tribunal noted the following issues with the applicant’s claims and evidence:
a)the applicant’s evidence about being included on a “death list” was inconsistent and lacked credibility, which led the Tribunal to conclude the applicant had fabricated the story;[8]
b)by the applicant’s own evidence, he had been able to work and remain in Mullativu without incident until December 2008.[9] Further, despite his claims to have interacted frequently with authorities, such as by reporting to authorities in Uduppu, the applicant did not experience any past harm;[10]
c)the applicant’s claim that his wife was questioned by the authorities about the applicant’s whereabouts during her return to Mullativu in 2010 was vague and lacked credibility;[11]
d)the applicant’s evidence that the CID had been looking for him since August 2013 and visited his family on multiple occasions was vague, lacked sense and was advanced for the first time at the Tribunal hearing;[12] and
e)the applicant’s claim that his father and brother were shot because they were LTTE supporters was internally inconsistent and was raised for the first time at the end of the Tribunal hearing. Further, the Tribunal noted that the claim was unsupported by any corroborative evidence.[13]
[7] CB 168 at [39]
[8] CB 264-265 at [19]-[21]
[9] CB 265 at [23]
[10] CB 265-266 at [23]-[24], [28]-[30]
[11] CB 265-266 at [25]-[28]
[12] CB 266-267 at [31]-[34]
[13] CB 267-268 at [36]-[39]
On the basis of its adverse credibility findings, the Tribunal rejected the applicant’s claims to have suffered past harm and further found that the applicant would not face any real chance of harm arising from the EPRLF, CID, army, authorities or anyone else.[14] The Tribunal also rejected the applicant’s claims to have any LTTE connections, and that he would be suspected of any such connections.[15] These findings led the Tribunal not to accept that the applicant would suffer harm because of any imputed political opinion.[16]
[14] CB 268 at [39]
[15] CB 268 at [39]
[16] CB 272 at [61], [70]
On the basis of country information, which indicated that the situation for Tamils had greatly improved, and its anterior finding that the applicant would not be suspected of being an LTTE supporter, the Tribunal rejected the applicant’s claims for protection arising from his Tamil ethnicity.[17]
[17] CB 270-271 at [52]-[53], [56]
In relation to the applicant’s claims arising from his status as a failed asylum seeker who departed Sri Lanka illegally, the Tribunal accepted that the applicant would be questioned, charged, bailed and fined between 5,000 and 50,000 rupees.[18] The Tribunal further accepted that there was a possibility that the applicant would be held in remand for a limited period and that prison conditions in Sri Lanka could be poor due to overcrowding and unsanitary conditions.[19] However, the Tribunal found that any processing faced by the applicant on return, including any detention, would be the result of the enforcement of laws of general application[20] and that any questioning, arrest or remand would not be aimed at the applicant for a Convention reason.[21] The Tribunal further considered that any poor conditions faced by the applicant whilst on remand would not be intentionally inflicted on the applicant and so did not give rise to a real risk of significant harm.[22]
[18] CB 276 at [82]
[19] CB 277 at [87]
[20] CB 277 at [86]
[21] CB 278 at [87]
[22] CB 280-281 at [103]-[106]
On the basis of these findings, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under either s.36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Migration Act). Accordingly, the Tribunal affirmed the delegate’s decision.
The present proceedings
The substantive application had been dismissed by a Judge of this Court summarily on 19 March 2015. The matter was remitted from the Federal Court on appeal by consent and allocated to my docket.
When the applicant failed to appear on 3 April 2017, my staff attempted to contact him on his nominated mobile telephone number. The transcript of that hearing reveals that that attempt was unsuccessful. There was a recorded message that the line was disconnected.
Also at that hearing, the Minister’s solicitor tendered a letter dated 27 March 2017 to the applicant at his nominated address for service, informing him of the hearing on 3 April 2017 and warning him that if he failed to appear, the Minister might seek dismissal of the application.
The applicant’s evidence is that he changed his address from time to time and also changed his telephone number when he updated his phone. He has a friend who has assisted him with various elements of these proceedings and he relied upon his friend to pass on to relevant persons his changes of details. I have no confidence that that occurred. Certainly neither the Minister’s solicitors, nor the Court were informed of any change of address or change of telephone number.
The applicant asserts that he engaged the assistance of three Sri Lankan named persons who the applicant understood to be legal practitioners. I accept that one of them appeared on behalf of the applicant at the first court date of the original proceedings. Another appeared recently, before Judge Emmett, when the reinstatement application came before her Honour as a duty matter. None of these persons has ever filed a notice of address for service or given any indication to the Court in writing that they were representing the applicant.
The applicant appeared today unrepresented. I accept that shortly after the summary dismissal of the applicant’s judicial review application in 2015, the applicant consulted Mr Bodisco of counsel. The purpose of that consultation was, no doubt, to canvass the prospects of the appeal to the Federal Court, which eventuated.
The applicant asserts that he engaged Mr Bodisco on a direct access brief to represent him in 2017. There is nothing, apart from the applicant’s oral evidence, to support that assertion. As I pointed out to the applicant, it is possible that Mr Bodisco was only engaged to provide advice. It is also possible that if Mr Bodisco was engaged to represent the applicant on a direct access brief, he could not attend Court because he was unaware of any Court hearing date. That would be consistent with the applicant’s ineffectual efforts to update the records of his residential addresses and telephone numbers.
I conclude that while the applicant has proffered an explanation for his non-attendance at Court, it is not fully acceptable as an explanation for that non-attendance.
Even if I had been persuaded that the applicant had adequately explained his non-attendance, there would, in my view, be no point in reinstating the application, because it is doomed to fail.
The grounds in the application are:
The RRT accepted that I am a Tamil from the North of Sri Lanka and that I would be detained at the airport as a failed asylum seeker who departed Sri Lanka illegally. It also accepted that failed asylum seekers are held in prison for several days in overcrowded and unpleasant conditions. The prison conditions are poor.
The RRT made the following errors:
1.When deciding that cruel or inhumane treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the RRT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The RRT has not considered whether the fact of possible placement of me in the overcrowded jail which has which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.
2.In WZAPN v MIBP, the Federal Court held that even a short period of detention threatens an applicant’s liberty will fall within the scope of s.91R(2)(a). Therefore, this case law interprets that s.91R(2)(a) was not correctly applied by the RRT in my case.
3.Although the RRT complied with the section 424AA but it has breached its statutory duty imposed by section 424A of the Act as the RRT has failed to put in writing the concerns and adverse information which arose in my review (reasons for refusing my review) and it has failed to invite me for my comments, after the hearing, before it made its decision.
4.I will provide further details of this ground and any other ground after a lawyer has been given by this court.
I agree with the Minister’s submissions on those grounds.
Ground 1
Ground 1 amounts to a contention that the Tribunal erred in finding that any period spent by the applicant in remand, in poor prison conditions, would not amount to significant harm because it was not “intentionally inflicted” by Sri Lankan authorities.
In the present matter, the Tribunal did not accept that the applicant would be intentionally harmed by the authorities if he was detained for a brief period, or that there would be any intention on the part of the authorities to significantly harm the applicant were he detained.[23] In particular, the Tribunal found that there was no intention on the part of the authorities to inflict torture, the death penalty, arbitrary deprivation of life, or extreme humiliation on the applicant.[24] The Tribunal’s findings therefore accord with the Full Court’s decision in SZTAL v Minister for Immigration,[25] in which their Honours Kenny and Nicholas JJ held that the expressions “intentionally inflicted” or “intended to cause” require actual subjective intention.
[23] CB 280-281 at [103]
[24] CB 280-281 at [103]
[25] [2016] FCAFC 69
The Minister’s submissions noted that SZTAL was the subject of a then pending appeal to the High Court.[26] However, the Minister invited the Court to determine this matter on the basis of the Full Court’s decision in SZTAL, which is binding authority.[27]
[26] S272/2016; S273/2016
[27] The High Court upheld the Full Federal Court decision: SZTAL v Minister for Immigration [2017] HCA 34
In any event, there is nothing to suggest that the applicant ever identified to the Tribunal that the relevant intention could be inferred on the basis of what the prison authorities may or may not have known. In AIS15v Minister for Immigration,[28] Wigney J rejected a similar argument to that made by the applicant on two additional bases:[29]
Even putting SZTAL to one side, the appellant faces at least two other significant hurdles in making out this appeal ground.
First, the Tribunal said very little in its reasons concerning how intention may or may not be proved. It simply found, as a fact, that it was not satisfied that intention had been proved on the evidence before it. There is nothing to suggest that the appellant put to the Tribunal, and that the Tribunal rejected, the proposition that relevant intention on the part of the Sri Lankan authorities could be made out on the basis that the authorities knew that remanding a person in custody in Sri Lanka would result in pain and suffering or extreme humiliation. It follows that, even if there was some merit in the appellant’s submission that proof of knowledge of the probable consequences was sufficient to prove an intention to cause those consequences, there is nothing in the Tribunal’s reasons to suggest that the Tribunal rejected that construction of the element of intention. The question of construction simply did not arise for consideration having regard to the way the matter was conducted in the Tribunal.
Second, and perhaps more importantly, the appellant has failed to point to any evidence that was before the Tribunal that was capable of establishing that the authorities in Sri Lanka knew that pain and suffering or extreme humiliation was the probable consequences of remanding a person in custody for a short period of time in a Sri Lankan prison. The Tribunal did not find that any person in Sri Lanka who was responsible for remanding persons in prison knew that the state of prisons in Sri Lanka was such that imprisonment, even for a short period, would inflict severe pain or suffering, or extreme humiliation, on the detainee. The appellant’s arguments in relation to intention and knowledge are, therefore, entirely in the abstract. They are not rooted in the facts or evidence before the Tribunal: cf. SZTAL at [98] (Buchanan J). The arguments simply do not arise on the facts of the appellant’s case.
[28] [2016] FCA 978
[29] At [45]-[47]
His Honour’s reasoning in AIS15 is applicable and pertinent in showing why no error was made by the Tribunal in the present case.[30]
[30] See also AIR15 v Minister for Immigration [2016] FCA 1425 at [36]
Ground 2
In Ground 2, the applicant relies upon the reasoning of North J in WZAPN v Minister for Immigration.[31] That reasoning was held to be incorrect by the High Court in Minister for Immigration v WZAPN[32] and by the Full Federal Court in SZTEQ v Minister for Immigration;[33] SZTIB v Minister for Immigration[34] and BZAFM v Minister for Immigration.[35]
[31] [2014] FCA 947
[32] (2015) 254 CLR 610
[33] [2015] FCAFC 39
[34] [2015] FCAFC 40
[35] [2015] FCAFC 41
The High Court confirmed that a Tribunal will not commit jurisdictional error in undertaking a qualitative assessment of whether a risk of the loss of liberty, for the purposes of s.91R(2)(a) of the Migration Act, constitutes serious harm for the purposes of s.91R(1)(b).[36]
[36] WZAPN (supra) (2015) 254 CLR 610 at [45]
The Tribunal’s finding[37] that a period of remand upon return to Sri Lanka did not amount to serious harm was not affected by jurisdictional error and was open to it on the material before it. In any event, the jurisdictional error found by North J in WZAPN does not arise in this matter in circumstances where the Tribunal also found, independently, that the applicant’s potential loss of liberty during remand as the result of his illegal departure, did not amount to persecution as it would be the result of the non-discriminatory application of a law of general application.[38] Accordingly, Ground 2 cannot be sustained.
[37] CB 277 at [86]-[88]
[38] CB 277 at [86]
Ground 3
By Ground 3, the applicant contends that whilst the Tribunal complied with s.424AA of the Migration Act, it failed to comply with s.424A of the Migration Act by not putting its concerns to the applicant in writing. In its decision record, the Tribunal noted that it put information given by the applicant during his interview before the delegate to the applicant pursuant to s.424AA of the Migration Act.[39] There was no obligation on the Tribunal to put information to the applicant in writing where it had put that information to the applicant orally in accordance with s.424AA.[40] There is no evidence to suggest, and the applicant does not contend, that the Tribunal failed to comply with s.424AA of the Migration Act.
[39] See CB 264 at [19]; CB 267 at [36]
[40] Section 424A(2A) of the Migration Act
Ground 3 fails.
Ground 4
Ground 4 does not raise a legal ground of review. For the sake of completeness, the applicant has not filed any amended application, or other document, since his application for judicial review.
Conclusion
I conclude that the applicant has not advanced a sufficient reason to reinstate his application. I am not persuaded that either by reason of the circumstances of the applicant’s non-attendance in 2017 or the legal merit of the judicial review application, that the interests of the administration of justice call for a reinstatement. I will order that the application in a case filed on 14 May 2018 be dismissed.
In consequence of the dismissal of the application in a case, the Minister seeks an order for costs fixed in the sum of $1,600. The applicant did not wish to be heard on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 June 2018
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