Abj16 v Minister for Immigration

[2017] FCCA 1439

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1439

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for protection visa – assertion Administrative Appeals Tribunal acted beyond jurisdiction or declined jurisdiction or made a “number of errors” – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 411, 412, 414, 424A

Migration Regulations 1994 (Cth)

Cases cited:

AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425
Minister for Immigration and Citizenship v You [2008] FCA 241
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
SZTGV v Minister for Immigration and Border Protection [2015] 229 FCR 90

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

Applicant: ABJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 30 of 2016

Judgment of: Judge Dowdy

Hearing date: 29 June 2016

Delivered at: Sydney

Delivered on: 7 July 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms S He

Solicitors for the Respondents: DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 8 January 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 30 of 2016

ABJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Sri Lanka aged 32 years, having been born on 2 April 1985.

2. Although his Application filed in this Court on 8 January 2016 sought no formal orders, it is to be understood as seeking to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 18 December 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 13 February 2014 refusing to grant to the Applicant a Protection (Class XA) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (Act).

Background and Claims for Protection

1. The Applicant arrived in Darwin from Sri Lanka as an unauthorised maritime arrival on 20 June 2012. He completed an Entry Interview with the Department of Immigration and Border Protection on 1 August 2012. At the Entry Interview he said that he had attended school from 1991 to 2002 and subsequently been employed from 2007 to 2012 in agricultural, forestry and fishing. Between 2005 and 2007 he resided in Qatar where he was employed in the construction industry. He returned to Sri Lanka in 2007 and lived there until June 2012 when he left Sri Lanka by boat from Trincomalee Harbour.

2. At the Entry Interview the Applicant said that he had left Sri Lanka as he felt that his life was unsafe because people were abducted by white vans at night.

3. He lodged his Protection visa application on 14 January 2013 (Protection visa application) and provided with it a statutory declaration. In that statutory declaration he claimed that during the armed conflict in Sri Lanka his family was often targeted and persecuted because his uncle was a member of the Liberation Tigers of Tamil Eelam (LTTE). His father was beaten in military camps, although the Applicant himself was not beaten because he would run away and hide from the army when the army visited his parents’ home. He said that if he returned to Sri Lanka he feared that he would be abducted by the army, tortured and killed. After the Applicant’s interview with the Delegate on 17 January 2014, the Applicant’s migration agent by letter dated 29 January 2014 provided further written submissions in support of his Protection visa application, in which his claims for protection were put on the basis of:-

   a)Tamil ethnicity; and

   b)imputed anti-government and pro-LTTE political opinion by virtue of his ethnicity, illegal departure from Sri Lanka and application for asylum in Australia.

Grounds for the Granting of a Protection Visa

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The Delegate was not satisfied that Australia had protection obligations to the Applicant under either the Refugees Convention criterion pursuant to s.36(2)(a) of the Act and cl.866.221(2) to the Migration Regulations 1994 (Cth) (Regulations) or under the complementary protection criterion pursuant to s.36(2)(aa) of the Act and cl.866.221(4) of Schedule 2 to the Regulations.

2. The Delegate recorded that the Applicant stated that he himself had never been involved with the LTTE or ever questioned by the authorities and he gave no indication that the Sri Lankan authorities had ever seriously suspected that he had any association with the LTTE. The Delegate found significant and concerning that there were variations between the Applicant’s claims in the Entry Interview and the interview with the Delegate, and that such inconsistencies cast doubts on the credibility and veracity of his claims. The Delegate came to the view that those claims were implausible and unsubstantiated and was not satisfied that the Applicant was a credible witness or that significant aspects of the Applicant’s claimed circumstances in Sri Lanka were true.

3. The Delegate was further not satisfied that there was a real chance that the Applicant would be subjected to serious harm amounting to persecution in the reasonably foreseeable future because of his race or that there was a real chance of persecutory treatment in the foreseeable future on account of his actual or imputed political opinion.

4. Having regard to country information, the Delegate was not satisfied that the Applicant faced a real chance of serious harm as a result of being a “forced returnee” and failed asylum seeker who departed Sri Lanka unlawfully. Likewise, the Delegate was not satisfied the Applicant faced a real risk of being subject to significant harm should he return to Sri Lanka.

Tribunal Hearing and Decision Record

1. The Applicant applied to the Tribunal on 13 March 2014 for a merits review of the Delegate’s decision. At the time he applied for the review he submitted to the Tribunal a copy of the Decision Record of the Delegate. By providing the Decision Record of the Delegate the Applicant “gave” the Tribunal the information contained therein: Minister for Immigration and Citizenship v You [2008] FCA 241 at [16] per Sundberg J.

2. The Applicant appeared before the Tribunal on 13 November 2015 to give evidence and present arguments with the assistance of an interpreter in the Tamil and English languages. After the hearing, the Tribunal wrote to the Applicant through his migration agent by letter dated 19 November 2015 and sent by email, purportedly pursuant to s.424A of the Act. The letter invited him to comment on or respond in writing to various inconsistencies in the version of events given by him or on his behalf during the Protection visa application process. The letter stated that because of these inconsistences the Tribunal might not be satisfied that his evidence had been truthful or credible.

3. The Applicant’s migration agent responded to the Tribunal by email on 3 December 2015 attaching a letter of the same date.

4. As stated at [2] above, by its Decision Record of 18 December 2015 the Tribunal affirmed the Delegate’s decision not to grant to the Applicant a Protection visa.

5. The Tribunal considered and analysed the Applicant’s claims and evidence from [21]-[91] of its Decision Record. Notwithstanding that it considered that his evidence was vague and lacking in detail, it accepted that the Applicant’s uncle had been involved in a Tamil separatist movement or militia during the time of the civil conflict in Sri Lanka. The Tribunal also accepted the Applicant’s own evidence that the uncle had left Sri Lanka in 2000 and continued to live in the United Kingdom. It was prepared to accept that the Applicant’s family, particularly his father and other uncles, may have been interrogated and mistreated by the Sri Lankan security forces as a consequence of their relationship with the uncle who now lived in the United Kingdom during the course of the civil conflict or shortly thereafter. However, the Tribunal also accepted the Applicant’s own evidence that his father had not been approached in relation to his brother’s LTTE connections since 2009 and that the Applicant himself had never personally been interrogated or questioned by the LTTE.

6. In particular, the Tribunal was not satisfied that the Applicant’s other evidence in relation to his past experiences in Sri Lanka was credible and it considered that his evidence in relation to three attacks to which he claimed to have been subjected in 2012 had changed over time. In the result, the Tribunal concluded with respect to the those alleged attacks as follows:-

   [100]The Tribunal has carefully considered the explanations for these inconsistencies provided by the applicant at the Tribunal hearing and in his response to the Tribunal's section 424A letter. The Tribunal is cognisant of the general difficulties faced by asylum applicants in presenting their claims and has made allowances for the passage of time, nerves and the repetition of information in different forums, under different time constraints and using different interpreters. The Tribunal finds, however, that there are fundamental differences in the way the applicant has described his past experiences of harm which are not, in the Tribunal's view, adequately accounted for by the matters referred to above. The Tribunal remains unsatisfied that any of the three incidents the applicant claims to have experienced in 2012 in fact occurred.

   [101]Having regard to the general credibility concerns outlined above and his failure to raise this claim prior to the Tribunal hearing, the Tribunal is also not satisfied that the applicant's family have been visited by Sri Lankan security forces on five or six occasions since the applicant's departure from Sri Lanka. Nor is the Tribunal satisfied that the Sri Lankan security forces suspect that the applicant may have joined the LTTE movement when he left Sri Lanka. Despite the submissions made in response to the Tribunal's s.424A letter, the Tribunal notes that the applicant did not suggest that he only became aware of the visits after his protection visa interview, when the matter was discussed at hearing.

7. Further, the Tribunal accepted as credible the general country information, which it discussed with the Applicant at the hearing, that Tamil ethnicity no longer created a presumption of eligibility for protection as a refugee and it also accepted DFAT’s general advice that there are no official laws or policies in Sri Lanka which discriminate on the basis of ethnicity or language. The Tribunal was consequently not satisfied that there was a real chance or risk of serious or significant harm now or in the reasonably foreseeable future arising solely from the Applicant’s Tamil ethnicity.

8. The Tribunal further rejected his second claim for protection summarised in [5(b)] above, finding at [109] as follows:-

   The Tribunal is not satisfied on the information before it that there is a real chance or risk applicant (sic) will be singled out or treated any differently upon return to Sri Lanka either in the course of processing at the airport, while in remand, in sentencing or upon return to his home area because he is a young Tamil male, has departed Sri Lanka illegally and sought asylum in Australia or because of any other personal attribute, including his uncle’s LTTE or PLOTE links. The Tribunal is not satisfied that the Sri Lankan security forces have had any interest in the applicant's family as a consequence of his uncle’s connections since 2009 and is not satisfied that they have any interest in the applicant for this reason. The Tribunal is supported in making these findings by the country information from UNHCR and the United Kingdom indicating that the Sri Lankan authorities are interested in identifying those with material links to the LTTE or who pose a present destabilising threat. The Tribunal is not satisfied on the material before it that there is a real chance or risk that the applicant would be charged with, or suspected of having committed, any criminal or terrorism related offence other than having departed illegally.

   (citation omitted.)

9. In the result, the Tribunal was not satisfied either that the Applicant had a well-founded fear of being persecuted in Sri Lanka or that there was a real risk that the Applicant would suffer significant harm as a result of being removed from Australia to Sri Lanka. The Tribunal therefore determined that Australia did not have any protection obligations to him either under s.36(2)(a) or s.36(2)(aa) of the Act and it accordingly affirmed the Delegate’s decision not to grant to him a Protection visa.

Ground of Attack on Tribunal Decision in this Court

1. The Application filed in this Court on 8 January 2016 did not contain any Grounds for judicial review of the Tribunal’s decision. The sole Ground for review relied upon by the Applicant appears to be as found in the second paragraph of his affidavit affirmed on 8 January 2016, which reads as follows:

   I have read my RRT decision and found a number of errors made by the RRT. I do not agree with the RRT decision as it has acted beyond its jurisdiction and I declined its jurisdiction. I lodge this application myself. I will wait until a lawyer is given by this case [or Court] and I will meet the lawyer.

2. I agree with the interpretation of this Ground as stated at [15] of the Minister’s Written Submissions, namely that it asserts the following three grounds of review:-

   a)The Tribunal acted without jurisdiction;

   b)The Tribunal wrongly declined its jurisdiction; and

   c)The Tribunal made a “number of errors” in its decision.

Did the Tribunal act without jurisdiction?

1. To the extent that the Applicant alleges that the Tribunal did not have jurisdiction to review the decision of the First Respondent to refuse his visa application, this ground cannot be made out. The Tribunal had jurisdiction to review the decision of the First Respondent because:

   a)section 414 of the Act specifies that the Tribunal must review “Part 7-reviewable decisions” where a valid application for review is made under s.412 of the Act. A “Part 7-reviewable decision” is given the meaning appearing in s.411 of the Act.

   b)the decision of the First Respondent was a decision to refuse to grant a protection visa, which was a “Part 7 reviewable decision” within s.411(1)(c) of the Act. The Applicant made a valid application for review by the Tribunal for the purposes of s.412 of the Act and consequently the Tribunal had jurisdiction under s.414 to review the decision of the First Respondent and indeed was required to exercise that jurisdiction.

Did the Tribunal wrongly decline to exercise jurisdiction?

1. To the extent that the Applicant claimed that the Tribunal wrongly declined to exercise its jurisdiction, this ground also cannot be made out. Contrary to what is alleged, the Tribunal did exercise its jurisdiction to review the First Respondent's decision, as is made clear by the procedural history leading to the Tribunal’s decision and as evidenced by its Decision Record.

Did the Tribunal make a “number of errors”?

1. This contention is completely unparticularised and no errors were identified in the 1 page Written Submissions filed by the Applicant on 24 June 2016 or at the hearing in this Court on 24 June 2016. Nothing appearing in the Written Submissions or orally submitted by the Applicant identified any error by the Tribunal which could in my view constitute jurisdictional error, but rather invoked a merits review which is not available in this Court.

2. I note that it is not incumbent on the Court to independently consider whether an unparticularised assertion of error by the Tribunal might be capable of being identified as a jurisdictional error made by the Tribunal: AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19] per Beach J; SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 at [4] per Madgwick J and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 per Reeves J. Nevertheless, I have considered the Decision Record of the Tribunal for myself and it appears to me to have made findings that were legally open to it on the material and to constitute a balanced, careful and detailed consideration of the Applicant’s claims.

Tribunal’s Purported Reliance on s.424A

1. I note that the letter dated 13 November 2015 and sent by the Tribunal purportedly pursuant to s.424A of the Act (see [12]-[13] above) merely contained content relating to inconsistencies in the Applicant’s version of events which might tend to cast doubt on his credibility. As such, s.424A(1) did not require the Tribunal to send this letter to the Applicant.

2. However, the fact that the Tribunal apparently believed s.424A(1) to apply to its contents concerning the inconsistencies is immaterial: SZTGV v Minister for Immigration and Border Protection [2015] 229 FCR 90 at 109 [53]. The letter did not need to be sent because s.424A(1) “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

Conclusion

1. I cannot discern any jurisdictional error affecting the decision of the Tribunal and the Application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:         7 July 2017