Acd16 v Minister for Immigration

[2018] FCCA 368

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACD16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 368

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – none of the grounds asserted by the Applicant established – no jurisdictional error by Administrative Appeals Tribunal – undisclosed s.438 certificate and non-disclosure of the document the subject of the certificate did not cause any practical unfairness or injustice – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438

Migration Regulations 1994 (Cth)

Cases cited:

BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

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

Applicant: ACD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 59 of 2016

Judgment of: Judge Dowdy

Hearing date: 21 July 2016

Date of Last Submission: 7 December 2017

Delivered at: Sydney

Delivered on: 22 February 2018

REPRESENTATION

The Applicant appeared in person.
Counsel for the Respondents:	Ms N. Johnson.

Solicitors for the Respondents: Mills Oakley.

THE ORDERS OF THE COURT ARE AS FOLLOWS

1. Page 27 of the United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum-seekers from Sri Lanka dated 21 December 2012 is marked “Exhibit B”.

2. The Application filed in this Court on 12 January 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 59 of 2016

ACD16

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 27 years, having been born on 16 January 1991.

2. By Application filed in this Court on 12 January 2016 he seeks to have quashed and redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 9 December 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 21 January 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).

3. The Applicant left Sri Lanka in December 2011 for Malaysia on a genuine passport and tourist visa and ultimately arrived in Australia via Indonesia by boat as an unauthorised maritime arrival on or about 22 July 2012. He completed an entry interview with the Department of Immigration on 26 September 2012.

4. He lodged his Protection visa application on 1 March 2013 and with it a Statutory Declaration declared on 18 February 2013 (statutory declaration) in which he made his claims for protection.

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”.

Applicant’s Claims for Protection

1. In his statutory declaration the Applicant claimed that:

   a)his family had lived in an area under the control of the Liberation Tigers of Tamil Eelam (LTTE).

   b)a military group which he could not identify had beheaded his brother-in-law when he was very young.

   c)LTTE had in 2008 begun forcibly recruiting people from the Mullaitivu District where he and his family had then resided. At this time he claimed his brother voluntarily joined the LTTE, and that a few months following this his sister was recruited to the LTTE by force. Around this time he claims to have joined the LTTE in an attempt to get them to leave his sister alone.  He claims to have spent three months in basic training with the LTTE and then to have been assigned to a supply unit.

   d)in 2009, in anticipation of the defeat of the LTTE by the Sri Lankan government, he fled the LTTE and returned home. He claimed his brother had done the same and that both of them spent some time living in their mother’s family home. When the war had concluded he and his family moved to a Sri Lankan government controlled area to get medical attention and to avoid bombs that were allegedly dropping on the area of their family home.

   e)he was put into a Temple Camp known as the Ramanathan Camp set up by the Sri Lankan army where the camp inhabitants were separated by gender. He claimed that he and his brother were questioned by the Criminal Investigation Department (CID) about their involvement with the LTTE and that his brother was beaten as part of the interrogation.

   f)in January 2011 he and his family were released from the Ramanathan Camp. He claims that the CID continued to approach him as he engaged in his daily activities and due to this continued harassment by the CID he decided to seek asylum in Australia.

2. The Applicant claimed to fear that if he returned to Sri Lanka he would be captured by the Sri Lankan army and other arms of the Sri Lankan government and tortured, abused and/or killed and subjected to degrading, cruel and inhumane treatment.

3. He also claimed to fear harm because of his ethnicity as a Tamil, due to his imputed political opinion, because of his brother and sister’s involvement in the LTTE, his own involvement in the LTTE and finally as a member of a particular social group, being failed Sri Lankan asylum-seekers.

Decision of Delegate

1. The Applicant took part in an interview with the Delegate on 29 October 2013 in relation to his application for a Protection visa.

2. In the result the Delegate found that she was not satisfied that the Applicant had a real chance of being persecuted for a Refugees Convention reason and his fear of persecution was not well-founded and therefore she was not satisfied that Australia had protection obligations to the Applicant under s.36(2)(a) of the Migration Act1958 (Cth) (Act) and cl.866.221(2) of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations) or that Australia had protection obligations under the complementary protection criterion pursuant to s.36(2)(aa) of the Act and cl.866.221(4) of Sch.2 to the Regulations.

3. The Delegate found that whilst the Applicant was a credible witness about some things, there were a number of discrepancies relating to exactly what took place in connection with his claimed involvement with the LTTE. She recorded that the Applicant had stated that he was never arrested, detained or placed in rehabilitation by the Sri Lankan authorities. She pointed out that the Applicant’s family had not been harassed in Sri Lanka, and she considered that the Applicant would be able to reside with his mother and siblings in Mullativu District or able to return to his place of birth in Jaffna where he had lived and worked until leaving Sri Lanka for Malaysia.

4. The Delegate did not believe the Applicant had been targeted or was likely to be targeted by the authorities in Sri Lanka as someone with direct links to the LTTE or for any other reason which would result in persecution. The Delegate found that the Applicant had not left Sri Lanka illegally but accepted that the Applicant would be identified by the Sri Lankan authorities as someone who had unsuccessfully applied for asylum in Australia. She was not satisfied that the Applicant would experience serious harm for this reason. She found that the Applicant did not necessarily have a profile as a person who has links with the civil war in Sri Lanka and the LTTE and was satisfied that the Applicant had not been sought out by Sri Lankan authorities since April 2010. She was not satisfied that the Applicant’s life or liberty would be threatened or that there was any real chance of him being subjected to serious harm or sufficiently serious economic hardship that his capacity to subsist would be threatened and the Applicant did not face a real chance of persecution if he returned to Sri Lanka.

5. Further, the Delegate was likewise not satisfied that there was a real risk that the Applicant would suffer significant harm for the purposes of s.36(2)(aa) of the Act and thus the Delegate refused to grant to the Applicant a Protection visa.

Tribunal Hearing and Decision Record

1. The Applicant applied to the Tribunal on 25 February 2014 for a merits review of the Delegate’s decision. He appeared before the Tribunal at a hearing on 30 November 2015 to give evidence and present arguments with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages and was represented by his registered migration agent via telephone.

2. By its Decision Record of 9 December 2015 the Tribunal affirmed the Delegate’s decision not to grant to the Applicant a Protection visa.

3. At [9] – [36] of its Decision Record the Tribunal set out, considered and analysed the Applicant’s claims, many of which it accepted. At [37] it summarised its preliminary factual findings in relation to the claims made by the Applicant, as follows:

   •   After having discussed his claims at hearing, the Tribunal accepts the applicant is a national of Sri Lanka as claimed. Therefore, I accept that Sri Lanka is the applicant's country of reference for the purposes of assessing refugee protection claims; and his receiving country for the purposes of assessing complementary protection claims.

   •   Based on the evidence presently before me, I am not satisfied the applicant has statutory effective protection in any safe third country (pursuant to subsections 36(3)-(5) of the Act).

   •   The Tribunal accepts the applicant briefly resided with a maternal aunt in 2002-2003.

   •   The Tribunal accepts that Mohan (the applicant's brother-in-law) was killed by unknown persons in 2004. The Tribunal accepts that Mohan would rent his equipment to the LTTE for their meetings, during the ceasefire in Sri Lanka between 2002-2008. However, the Tribunal does not accept that Mohan provided any other assistance to the LTTE.

   •   The Tribunal accepts the applicant (and his family) resided in the Vanni in 2002-2003 and 2006-2009.

   •   The Tribunal accepts the applicant's brother was recruited into and fought for the LTTE, from 2008. I also accept that in early 2009, the brother fled the LTTE and returned to live in the family home. I also accept the brother (along with the applicant and the rest of the family) was held in a displacement camp until January 2010, that shortly after his release he legally travelled to and worked in Qatar, that he returned to Sri Lanka, married, and now lives and works in Mullativu.

   •   The Tribunal accepts the applicant's sister was forcibly recruited to the LTTE in late 2008, that she was trained for 3 days, and that she then fled and returned to live with her family in the family home. The Tribunal also accepts the sister (along with the applicant and the rest of the family) was held in a displacement camp until January 2010, and that she now lives with her family in Sri Lanka.

   •   The Tribunal accepts the applicant felt forced to assist the LTTE in late 2008 (by being recruited), in order that his sister was not again forcibly recruited.

   •   The Tribunal accepts the applicant was forced to assist the LTTE in late 2008/early 2009 for 3 months, and that he assisted the LTTE principally by taking medical and other supplies to LTTE fighters.

   •   The Tribunal accepts the applicant fled the LTTE in early 2009; that he and his family stayed together in the Vanni (in their home) for around one month; that they then decided to move into a Sri Lankan government-controlled area; that they were held in a displacement camp for approximately one year; that they were questioned (a few times) while being detained; that the applicant's brother was mistreated; and that all denied being associated with the LTTE.

   •   The Tribunal accepts that all Tamils, including the applicant, were being interviewed by the CID or the SLA at the time of the applicant's release from the displacement camp in January 2010.

   •   The Tribunal accepts the applicant departed Sri Lanka lawfully in December 2011; that he travelled to Malaysia; and that he passed through Indonesia and arrived in Australia (by boat) in July 2012.

   •   However, the Tribunal does not accept the App was in hiding for the reasons he claimed or at all, in the final three months that he resided in Sri Lanka, prior to his lawful departure. That said, the Tribunal proposes to accept the Applicant was involved in some form of dispute with the CID men (approximately 3 months prior to departing Sri Lanka) but that dispute was finally resolved prior to the applicant departing Sri Lanka.

4. Nevertheless, the Tribunal accepted that the Applicant had been involved in some sort of dispute with the CID approximately three months prior to his departure from Sri Lanka, and that this dispute was resolved prior to his departure. Having accepted this, it rejected as false the Applicant’s claim that in the final three months of his stay in Sri Lanka he had been in hiding. The Tribunal pointed out that the Applicant would not have been readily able to depart from Sri Lanka legally if he had been wanted by the CID for the reasons he claimed.

5. Further, it was satisfied that the Applicant’s family back in Sri Lanka had been able to live relatively peacefully there. It was not satisfied that some 6½ years after the end of the civil war in Sri Lanka someone with the Applicant’s accepted profile would be of any adverse interest to any party in Sri Lanka because of any of his accepted claims and pointed out that the Applicant’s elder brother, who had actually apparently fought for the LTTE, was now married and living in Mullativu District.

6. The Tribunal was satisfied that neither the Applicant nor any of his family members would be thought or perceived in Sri Lanka to be a member of or associated with or supportive of the LTTE.

7. The Tribunal was not satisfied that the Applicant would suffer a real chance of persecution if he returned to Sri Lanka due to:

   a)any perceived association or former association with the LTTE;

   b)Tamil ethnicity;

   c)being a person who had lived in Australia for 3½ years; or

   d)being a failed asylum-seeker.

8. The Tribunal also did not accept his claim to fear harm for his imputed political opinion because of his brother and sister’s involvement with the LTTE. It also found that for the purposes of the complementary protection criterion there was no real risk that he would suffer significant harm if he returned to Sri Lanka.

9. Accordingly the Tribunal affirmed the Delegate’s decision not to grant the Applicant a Protection visa.

Grounds of Attack on Tribunal Decision in this Court

1. The Application filed in this Court on 12 January 2016 contained the following Grounds:

   Ground 1

   The Tribunal erred in asking the wrong question.

   Particulars

   (a)At [40], [48] and [52] the Tribunal found it was not satisfied as it was 6 1/2 years after and of the war, the applicant would have a real chance of persecution for this reason should he return;

   (b)At [54] the Tribunal was not satisfied that the applicant's almost 3 1/2 years in Australia would give rise to a real chance that he would be harmed on return to Sri Lanka; and

   (c)The Tribunal erred in considering the duration of time since departure from Sri Lanka and time spent in Australia was negating or reducing the need to assess the real change of serious or significant harm to the applicant upon return to Sri Lanka.

   Ground 2

   The Tribunal erred in making unreasonable findings that the applicant did not have a material profile.    

   Particulars

   (a)     At [39] the Tribunal accepted:

   i.   The applicant's brother-in-law was killed by unknown persons in 2004;

   ii.  The applicant resided in an LTTE controlled area;

   iii.     His brother and sister were forcibly recruited to the LTTE in 2008;

   iv. The applicant was forcibly recruited into the LTTE for e months and fled prior to the end of the war in May 2009; and

   v.  The applicant and his family were put into a displacement camp and released in January 2010.

   (b)Unreasonable finding that neither the applicant nor any family members were suspected of being a member of, associated with, or supportive of the LTTE (except for the fact of their Tamil ethnicity);

   (c)At [58] the Tribunal quoted an extract form the UNHCR risk profiles and at [59] the Tribunal presumed that applicant could fall into “2”, :4” and “6” risk profile; and

   (d)The Tribunal acted unreasonably and erred in finding that the applicant did not have a real chance of harm upon return to Sri Lanka as his family have not have any serious problems since release from the displacement camp in January 2010 and that the applicant has not done anything in Australia, without considering whether there is a real chance that the application could suffer harm after his return to Sri Lanka due to his risk profile as indicated by the UNCHR Guidelines.

Consideration

1. The Applicant did not file any Written Submissions and at the hearing in this Court made only brief oral submissions, which basically argued with various findings of the Tribunal on a merits review basis. During those oral submissions he asserted, apparently for the first time, that he had arranged a forged passport to leave Sri Lanka but, as pointed out by Ms Johnson who appeared for the Minister, this was contrary to a number of earlier statements of the Applicant going back to the Entry Interview of 26 September 2012 (when he said that in December 2011 he went to Malaysia on a “genuine passport and tourist visa”), confirmed in [2] of his statutory declaration and as found by the Tribunal in [7] of its Decision Record.

2. In any event, this new assertion is irrelevant to any exercise of judicial review of the Tribunal’s decision.

Ground 1

1. I consider that Ground 1 constitutes an attempt to seek impermissible merits review. Its effect is to allege that the Tribunal asked itself the wrong question by taking into account the amount of time that had elapsed since the end of the civil war in Sri Lanka (6½ years) and the fact that the Applicant had spent almost 3½ years in Australia, in its consideration of whether such would give rise to a real risk that he would be harmed on return to Sri Lanka.

1. In my view these were matters that the Tribunal was entitled to consider and take into account in considering whether the Applicant would face a real chance of persecution or would suffer significant harm on return to Sri Lanka. They were matters that could be rationally considered by the Tribunal in carrying out its statutory task of reviewing the Delegate’s decision. In considering these issues the Tribunal did not err by asking the wrong question.

2. Rather, in my view it was legally open to the Tribunal to find on the basis of its assessment of country information that whilst Tamils who had assisted the LTTE during the civil war were of adverse attention to the authorities during the war and in its immediate aftermath, that it had now been 6½ years since the war had ended. Further and significantly, the Tribunal also placed weight, and was entitled to place weight, on the Applicant’s own evidence that his brother, who had fought for the LTTE, was able to reside in Sri Lanka without suffering any persecution and that both he and his brother had previously been allowed by the Sri Lankan authorities to legally depart the country: [27], [40], and [48] – [49] of the Decision Record. It was also legally open to the Tribunal to find on the basis of its assessment of country information that the Applicant would not face a real chance of harm merely because he had resided in Australia for 3½ years: [54] of the Decision Record.

3. Accordingly, Ground 1 does not establish jurisdictional error.

Ground 2

1. I also do not consider that this Ground is made out. It again amounts to arguing with the finding of the Tribunal on a merits review basis and does not establish any jurisdictional error.

2. I record that the context to Ground 2(c) is the reference therein to page 27 of the United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum-seekers from Sri Lanka dated 21 December 2012 (UNHCR Guidelines). Page 27 of the UNHCR Guidelines sets out the six profiles of persons reproduced in [58] of the Decision Record. The prefatory words of these profiles on page 27 state as follows:-

   However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:…

3. The Decision Record at [59] makes clear that the Tribunal considered the six profiles recorded in [58]. It further correctly recorded that these six risk profiles were not intended by the UNHCR Guidelines to be exhaustive and it recorded that the Tribunal was prepared to presume that the Applicant could fall into the profiles numbered 2, 4 and 6. However, the Tribunal was also entitled to consider that the mere fact of falling into any of these profiles was not conclusive of whether or not the Applicant was entitled to a Protection visa. As the prefatory statement to the six profiles on page 27 of the UNHCR Guidelines (reproduced at [31] above) makes clear, regard is necessary to be had to the specifics of each individual case. Unfortunately for the Applicant, the Tribunal was not satisfied that having regard to the specific matters, facts and circumstances pertaining to the Applicant he was entitled to protection from Australia under s.36 of the Act.

4. In my view nothing in Ground 2 establishes that the Tribunal’s decision is infected by jurisdictional error.

A Further Matter

1. On 28 June 2017 judgment in this matter was set down for delivery on 7 July 2017. However, the Minister as a model litigant then advised that in this matter a non-disclosure certificate had been issued under s.438 of the Act (s.438 Certificate), which had not previously been disclosed to either the Applicant or the Court. Procedural orders were then made for the parties to make submissions which led to the Minister relying on an Affidavit of Ms Xiangling He affirmed 7 December 2017 and Further Submissions of the same date. The Applicant was afforded the opportunity to file and serve an Amended Application and affidavit evidence limited to the issue arising out of the s.438 Certificate but did not do so.

2. The evidence establishes that the document the subject of the s.438 Certificate (which was dated 27 March 2014) was an internal email sent on 7 August 2012 within the Department of the Minister (the email) which advised the recipient that the Applicant had informed the Department that his name was spelt incorrectly on the Department’s systems, and proceeded to give the supposedly correct spelling of the Applicant’s first name.

3. The Minister concedes that the s.438 Certificate is invalid on its face for the reasons given by Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1. However, the Minister further submitted that the non-disclosure by the Tribunal to the Applicant of the existence of the s.438 Certificate and the email did not give rise to a denial of procedural fairness constituting jurisdictional error.

4. I agree with the Minister’s submission. In my view the s.438 Certificate is invalid but no relevant non-disclosure has occasioned procedural unfairness to the Applicant. The Tribunal did not mention or rely upon the s.438 Certificate or the email and did not act upon or have regard to either document in reaching its decision. The minor change in the spelling of the Applicant’s first name was entirely irrelevant and immaterial to the Tribunal’s review of the Delegate’s decision and neither the existence of the s.438 Certificate or the email could have had any conceivable impact on the outcome of the review and there was no practical unfairness caused thereby: see BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 at [2] – [4] per Robertson J.

Conclusion

1. Accordingly, the Application filed in this Court on 12 January 2016 must be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     22 February 2018