ACE15 v Minister for Immigration

[2016] FCCA 2939

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACE15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2939

Catchwords:
MIGRATION – Application for Judicial review – whether Tribunal failed to consider a claim expressly made or clearly arising – whether the Tribunal failed to assess if the applicant was at risk of serious or significant harm – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425(1)

Cases cited:

BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) 144 FCR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: ACE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 396 of 2015

Judgment of: Judge McNab

Hearing date: 29 September 2016

Date of Last Submission: 29 September 2016

Delivered at: Melbourne

Delivered on: 25 November 2016

REPRESENTATION

Counsel for the Applicant: Ms Latif

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Ms Lucas

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 3 March 2015 and the amended application filed on 24 June 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 396 of 2015

ACE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Nature of Application

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) dated 10 February 2015 by which the Tribunal affirmed a decision not to grant the applicant a Protection (class XA) Visa (“the visa”).

2. This matter is the subject of a previous decision of the Tribunal made on 31 October 2013 which was remitted for rehearing by an order of this Court made on 5 September 2014.

Background

1. The applicant, who is a 19-year-old citizen of Sri Lanka and a Tamil, claimed that he had left Sri Lanka illegally and feared that he would be harmed by the authorities for this reason. The Tribunal found at [42] that the applicant has not been seriously or significantly harmed in the past because of his Tamil ethnicity. The Tribunal found that he had not been regarded as a supporter of the LTTE.

2. By an amended application, the applicant raised two grounds being that:

   i)the Tribunal denied the applicant procedural fairness by failing to give notice of the issues arising on the review; and

   ii)the Tribunal failed to consider relevant considerations.

3. The grounds of review are detailed, contain particulars and were in the following terms:

   1.The Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth)(Act) by failing to give the applicant the opportunity to give evidence and present arguments in relation to:

   a.the applicant’s capacity to pay any fine imposed under the Sri Lankan Immigrants and Emigrants Act of 1948 (I&E  Act) by reason of the applicant's illegal departure from Sri Lanka; or

   b.the consequences for the applicant of any failure to pay such a fine, including the extent to which default in payment would result in imprisonment and subject the applicant to “significant harm” as those terms are defined in s 36(2)(aa) of the Act.

   Particulars

   a)The applicant sought complementary protection for reasons that included he would suffer “significant harm” on return to Sri Lanka because he had left the country illegally and was liable to be imprisoned as a result. The conditions of imprisonment were such that Tamils were vulnerable to abuse and torture.

   b)The Tribunal ultimately decided the applicant would be issued a fine for his illegal departure and his family had capacity to pay the fine: CB 301 [82]. This finding was critical, central and dispositive.

   c)The Tribunal’s conduct of the hearing was insufficient to put the applicant on notice that an issue arising on the review was his capacity to pay any fine imposed.

   d)The issue was not otherwise raised by the delegate.

   2.The Tribunal failed to consider a relevant consideration by failing to consider, properly or at all, natters going to the applicant’s ability to pay any fine imposed for breach of the I&E Act.

   Particulars

   a)The applicant claimed:

   i.      He had no employment history, having fled from Sri Lanka as a 16 year old student: CB 58.

   ii.     His father paid US $2,500 for the applicant’s passage to Australia: CB 32. The applicant’s mother, father and sister subsequently fled to Australia by boat: CB 44, 133.

   iii.    His father was self-employed and operated a food- delivery business: CB 94, 131.

   b)The delegate “acknowledged the applicant’s financial situation may be challenging”: CB 141.

   c)The applicant’s father was a witness at the Tribunal hearing. The applicant’s father gave evidence to the effect that the family had had to relocate several times to avoid persecution as Tamils. His evidence was ultimately:”…so in Chilaw we faced the problems, so we left and we came over here. We are human beings. We lost out everything. We just have – we are just alive”: “HK-1”, T32, line 38 to 40.

   d)The matters identified at sub-paragraphs (a) to (c) above were express claims, integers of claims or central and significant evidence before the Tribunal.

   e)The matters identified at sub-paragraphs (a) to (c) above went to the Tribunal’s dispositive finding at CB 301 [83], that the applicant could pay any fine imposed for breach of Sri Lankan law.

   f)The matters identified at sub-paragraphs (a) to (c) above were not considered.

4. The detail of all the applicant’s claims and the particular consideration of them is not relevant to the grounds, save for those matters averted to in the particulars of the grounds.

Consideration of Ground 1

1. It is alleged that there is a failure on the Tribunal’s part to put the applicant on notice that an issue arising on the review was his capacity to pay any fine imposed, in the event of his return to Sri Lanka. s.425(1) of the Act provides:

   425.  Tribunal must invite applicant to appear

   (1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

2. What is or is not an issue for the purposes of s.425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47].

3. The applicant was put on notice that an issue arising on the review was his capacity to pay any fine imposed, as a result of the previous decision of the Tribunal on 31 October 2013 at [37] and [38] which stated that it was likely that the applicant would be prosecuted upon his return to Sri Lanka and that the penalty most likely to be imposed would be a fine.

4. The applicant was also aware of this issue, as the payment of a fine and his ability to pay a fine was raised by his migration agent in submissions filed on behalf of the applicant.[1] Further, the applicant was invited by the Tribunal to comment on the likelihood of a fine and the likely amount of the fine.[2] At that time, the applicant had an opportunity to raise matters in relation to his capacity to pay any fine and the Tribunal was not under an obligation to make the applicant’s case for him.[3]

   [1] Court Book 228

   [2] Tribunal Hearing Transcript, p.20

   [3] See BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 at 53, 60 and 62

5. In this matter, the issue of the likely punishment was raised as an issue and the applicant had an opportunity to respond and this was acknowledged as such by the applicant’s agent given that he/she filed submissions on the issue. The Tribunal’s consideration of the issue at [80] – [83] does not reveal any unreasonableness or illogicality.

6. At [83] –[84]  the Tribunal held:

   83.The fine likely to be imposed on the applicant is between 5000 and 50,000 Sri Lankan rupees according to the information above. On the current exchange rate, this amounts to between approximately $47 AUD and

   
   

   $467 AUD. The Tribunal does not accept that the imposition of such a fine on the applicant will give rise to a real risk of significant harm. The applicant’s family had a good employment history in Sri Lanka. His family was able to afford to pay for his journey to Australia. Further the Sri Lankan legislation allows for payment of fines by instalment. In those circumstances the Tribunal is satisfied that the applicant would be able to pay any fine imposed.

   84.The Tribunal finds that there are no substantial grounds for believing that there is a real risk that the applicant would be significantly harmed as a result of his legal departure from Sri Lanka.

7. The challenge to the finding of fact that the applicant had the capacity to pay any fine is simply an attempt to cavil at the factual finding and does not disclose a jurisdictional error. Had the applicant wished to positively put a case that he could not pay any fine imposed he could have done so.

Consideration of Ground 2

1. At [18] and [19] of the applicant’s written submission the applicant submitted (with their emphasis):

   18.The following material going to the applicant and his family’s financial capacity was before the Tribunal:

   a.the applicant had no employment history, having fled from Sri Lanka as a 16 year old student: CB 58.

   b the applicant’s father paid US$2,500 for the applicant’s passage to Australia: CB 32. The applicant’s mother, father and sister subsequently fled to Australia by boat: CB 44, 133.

   c.up until the time he left Sri Lanka, the applicant’s father was self-employed and operated a food-delivery business: CB 94, 131. At the hearing, the applicant’s father gave evidence the family had relocated several times to avoid persecution. His evidence was ultimately: “…so in Chilaw we faced the problems, so we left and we came over here. We are human beings. We lost our everything. We just have- we are just alive”: “HK-1”, T32, line 38 to 40.

   19.The following materials were also before the Tribunal:

   a.the delegate’s reasons for decision. The delegate “Acknowledged the applicant’s financial situation may be challenging”: CB 141.

   b.the First Tribunal’s cited country information to the effect that “[o]vercrowding in Sri Lanka’s prisons is in part caused by… the large number of prisoners detained on minor charges due to their inability to pay fines”[emphasis added]: CB 17.

2. The applicant submits that the failure on the Tribunal’s part to consider or “show any consciousness of these matters amounts to a failure to consider relevant considerations and amounts to jurisdictional error in the circumstances of the case”. The difficulty with this claim is that it was not established by evidence that any or all of these claims were raised squarely by the applicant as a basis for a submission that the applicant would suffer significant harm within the meaning of s.36(2a) or s.5 of the Act in the event that he would return to Sri Lanka. The Tribunal is not required to consider a case that is not expressly made or does not clearly arise on the material before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) 144 FCR 1 at [61] and NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15].

3. The Tribunal did consider the imposition of a fine at [83] of its decision (set out above). The Tribunal considered that even if the applicant was to face a short period of remand on his return to Sri Lanka, taking into account the country information and poor prison conditions, it did not consider his return to give rise to a real risk that the applicant will suffer significant harm.[4] The Tribunal also found at [83] that the

   
   

   Sri Lankan legislation allows for payment of fines by instalment. This was expressed to be one of the reasons why the Tribunal found that the imposition of a fine of the magnitude referred to would not constitute significant hardship to the applicant. The applicant’s grounds do not undermine that finding.

   [4] CB 301, [80] – [82].

Conclusion

1. In these circumstances, the applicant’s application and the amended application filed on 24 June 2016 be dismissed and the applicant pay the first respondent’s costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 25 November 2016