AAV15 v Minister for Immigration and Border Protection
[2018] FCA 476
•8 March 2018
FEDERAL COURT OF AUSTRALIA
AAV15 v Minister for Immigration and Border Protection
[2018] FCA 476
Appeal from: AAV15 v Minister for Immigration [2016] FCCA 2913 File number: NSD 1994 of 2016 Judge: RARES J Date of judgment: 8 March 2018 Legislation: Migration Act 1958 (Cth) ss 36, 477 Cases cited: AAV15 v Minister for Immigration [2016] FCCA 2913
AAV15 v Minister for Immigration and Border Protection [2015] FCA 700
Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610
SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556
SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405
Date of hearing: 8 March 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 21 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore ORDERS
NSD 1994 of 2016 BETWEEN: AAV15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
8 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit Court refusing the appellant Constitutional writ relief in respect of the decision of the Refugee Review Tribunal given on 2 January 2015 that affirmed the decision of the Minister’s delegate to refuse to grant the appellant a protection visa: AAV15 v Minister for Immigration [2016] FCCA 2913.
Background
The appellant is a citizen of Sri Lanka who arrived in Australia as an unlawful maritime arrival in July 2012. In December 2012, he applied for a protection visa. He claimed that his brother had been abducted in a white van in January 2007 and had been missing ever since. He claimed that shortly after his brother’s abduction, he went to India for three months until May 2007 and that when he returned from India, the Sri Lankan army rounded him up and took him away because he was a single Tamil male. He claimed that he had been interrogated as to who had taken his brother and that he told his interrogators that he did not know. He claimed that afterwards he was required to report every day to the army and sign a register form at 6.00pm, but that on most days he was unable to be there on time because he worked as a driver.
At his entry interview, he said that nothing else had ever happened to him. In his interview with the delegate, the appellant said that he had been arrested, presumably by the army, about three months after he returned from India, questioned about his brother and beaten and that, subsequently, he had been detained on numerous occasions, the last of which was about two or three weeks before he came to Australia. The delegate noted that the appellant had been issued with a passport on 29 May 2012 and that he had claimed that he received it on the same day as he applied for it. He claimed, at that time, that he did not know the reason why his brother had been abducted, saying that he had no involvement with the Liberation Tigers of Tamil Eelam (LTTE). He claimed that his mother had reported his brother’s abduction to the Human Rights Commission, but not to the police, and he produced a receipt of the mother’s report to that Commission.
The delegate accepted that the brother had been abducted in 2007 but did not accept the appellant’s other substantive claims concerning his alleged mistreatment by the army or that he had been suspected of being involved with the LTTE or other groups. The delegate did accept that the appellant had been rounded up by the army after he returned from India in 2007 was released after questioning, was required to report to the army camp regularly and that, from 2007, he worked until his departure from Sri Lanka in construction as a mason and driver.
The delegate noted that the appellant’s family continued to reside in the same residence in the Batticaloa District for the whole period following his return from India. The delegate was not satisfied that the appellant’s Tamil identity had resulted in him suffering any serious or significant harm and that he had no actual or imputed political opinion or association in respect of involvement with the LTTE.
The delegate also considered whether the appellant would be likely to suffer significant or serious harm within the meaning of s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) by reason of his being returned to Sri Lanka as a failed asylum seeker or being charged with illegal departure and held for a short time in poor prison conditions pending him being brought, as soon as the Sri Lankan authorities could do so, before a magistrate and granted bail on that charge.
Both of those matters have now no prospect of giving rise to a claim for a protection visa by reason of the decisions of the High Court in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 and SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405. Each of which decisions was given well after the appellant’s proceedings before the delegate and the Tribunal. It is not necessary for me to traverse the material before either of the administrative decision-makers relating to these claims.
The proceeding before the Tribunal
The appellant was represented by a solicitor-migration agent in the proceeding before the Tribunal who made, among others, written submissions identifying his claims. Those claims continued to be that the appellant feared persecution or serious significant harm were he returned to Sri Lanka because of his Tamil ethnicity and or imputed political opinion, because he was suspected of being part of, or associated with, the LTTE and because of the two matters just mentioned that are now no longer able to be pursued by him.
At the hearing before the Tribunal, which had to be adjourned once, the Tribunal took evidence from the appellant in which he elaborated on his claims. The Tribunal put matters to him about his evidence.
The Tribunal concluded that he had not left Sri Lanka for the reasons that he claimed. It found that he had manufactured those claims in an attempt to provide a basis for protection in Australia and it gave detailed reasons for those findings. It accepted that his brother had been abducted, but found that the appellant had not given truthful evidence to it in relation to the brother’s disappearance, and that that gave rise to serious concerns about his overall credibility.
It noted that the appellant had first mentioned, during the hearing held in December 2014, that he had learned some eight months previously that his brother had died and had been abducted by the LTTE. He claimed to the Tribunal that his uncle, who lived in another part of Sri Lanka, had telephoned his mother with that news. The Tribunal did not accept that account was true or that his brother had had any involvement with the LTTE. It also rejected his claims to have had ongoing problems as a result of which he had to report regularly to the authorities or that he was questioned and interrogated shortly before he left Sri Lanka. It found that, had those circumstances occurred, he would have mentioned them, even briefly, during his entry interview rather than indicating that he did not have any ongoing harassment problems. The Tribunal found that the appellant had fabricated his claims to have been required continually to report and to have been targeted by the authorities until he left in 2012.
It found that, although the appellant had experienced some problems as a young Tamil male during the civil war and in its immediate aftermath, he had not experienced ongoing problems and that there were no ongoing suspicions held by the authorities about him having any involvement with the LTTE. The Tribunal did not accept that, at the time the appellant left Sri Lanka, he had any suspected or actual links with the LTTE or that he was at risk of serious or significant harm for the purposes of s 36(2)(a) and (aa) of the Act. Accordingly, it found there was no real chance that he would be at risk for reasons of any actual or imputed suspicions that he was connected to the LTTE or because he was a young Tamil male.
The Tribunal also rejected the two claims relating to his being a failed asylum seeker and being subject to the risk of serious or significant harm were he to be returned and charged with leaving Sri Lanka illegally (being the basis of the appellant’s grounds in the Court below).
The appellant had sought an extension of time under s 477 of the Act to bring his proceedings in the Federal Circuit Court. This application was rejected initially but, on appeal, Flick J set that decision aside and remitted the extension application to the Court below in AAV15 v Minister for Immigration and Border Protection [2015] FCA 700 on the basis that, although the intervening decision of the High Court in WZAPN 254 CLR 610 had made one of those proposed grounds of review unarguable, there was still then the potential for the other ground to succeed, namely, that when returned to Sri Lanka, potentially he would be held in poor conditions on remand on a charge of having left Sri Lanka illegally that could have engaged Australia’s protection obligations. Subsequently, in 2017, the High Court made the second ground unarguable when it decided SZTAL 347 ALR 405.
The proceeding before the trial judge
When he appeared before her Honour the appellant was unrepresented. By that time the Full Court of this Court had decided SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556 and that decision, was then the subject of an application for special leave to appeal that had not been heard. Her Honour considered the argument on that point and rejected it, being bound to follow the Full Court’s decision. She then turned to, and rejected, the only pleaded ground of review that was based on the other unsustainable limb of his claim, to be a failed asylum seeker who was at risk of being subjected to significant or serious harm were he returned to Sri Lanka. That ground had been precluded by the decision of the High Court in WZAPN 254 CLR 610.
Her Honour noted that, in his oral submissions, the appellant had taken issue with the conclusion of the Tribunal and that he had told her that he could not return to Sri Lanka as he would be at risk of harm. The trial judge found that, in substance, what the appellant was seeking to do was to engage the Court in impermissible merits review and that those arguments should be rejected. For those reasons her Honour dismissed the application with costs.
This appeal
The appellant’s two grounds of appeal, in substance, seek to challenge the applicability of the High Court’s decisions in SZTAL 347 ALR 405 and WZAPN 254 CLR 610 to his circumstances.
Those grounds are unarguable and cannot succeed. I reject them.
In his oral submissions to me today the appellant repeated what he had told her Honour, in substance, that, if he were returned to Sri Lanka, he would be in danger and that there were problems there. He accepted that he had not raised the issue of links between his family and the LTTE in his initial interviews with the Minister’s Department and he sought to explain why when he made his submissions today. He said that others had told him not to say anything when he arrived in Australia about those links, but subsequently he decided to do so. He also said there had been recent problems in Sri Lanka in the last few days which again showed that he should not be returned.
Each of those matters is not a matter that the Court can consider. Rather, they involve the appellant inviting the Court to engage in a review of the merits of the Tribunal’s decision which is not its function. I reject those arguments.
Conclusion
In those circumstances I am of opinion that the appeal must be dismissed with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 10 April 2018
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