ACF15 v Minister for Immigration and Anor (No.2)

[2016] FCCA 765

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACF15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 765

Catchwords:
MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – applicant not believed – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R

ACF15 & Minister for Immigration & Anor [2015] FCCA 729
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407

Applicant: ACF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 512 of 2015

Judgment of: Judge Driver

Hearing date: 7 April 2016

Delivered at: Sydney

Delivered on: 7 April 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment of Mills Oakley

ORDERS

1. The application filed on 3 March 2015 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 512 of 2015

ACF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 28 January 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Sri Lanka.  Background facts concerning his claims for protection and the decision of the Tribunal on them are summarised in the Minister’s outline of legal submissions filed on 30 March 2016.

2. The applicant is a citizen of Sri Lanka who arrived in Australia by boat as an Irregular Maritime Arrival on 28 July 2012[1].  He participated in an entry interview on 5 September 2012[2] during which he first outlined his reasons for leaving Sri Lanka[3] and why he feared returning to his country of origin[4].

   [1] Court Book (CB) 23

   [2] CB 1-20

   [3] CB 13-14

   [4] CB 18-19

3. On 26 November 2012 the applicant lodged a protection visa application[5], with the assistance of a representative[6].  In support of that application, the applicant provided a statement of claim[7], marriage certificate[8], various identity documents[9], Google map print-outs[10] and an internet article[11].  He also completed a Form 80 – Personal particulars form[12].

   [5] CB 21-66

   [6] CB 29; CB 96-98

   [7] CB 47-49

   [8] CB 50-51

   [9] CB 52-63

   [10] CB 64-65

   [11] CB 66

   [12] CB 67-87

4. The applicant, by his representative, provided submissions dated 13 March 2015 to a delegate of the Minister[13].

   [13] CB 111- 124

5. The applicant claimed to be a citizen of Sri Lanka, who made regular weekly trips to Mullativu, from Vavuniya from 2005 to sell gold products to clients.  He claimed that Mullativu was under the control of the Liberation Tigers of Tamil Eelam (LTTE).  The applicant also claimed that shortly after he started commuting to Mullativu in 2005, he was approached by Criminal Investigation Department (CID) officers and was questioned in relation to his frequent trips to Mullativu.  The applicant alleged that CID officers started extorting him and that this continued until 2009.  The applicant claimed further that his brothers-in-law, who were abducted by the LTTE during the civil war (which ended in 2009) escaped from Mullativu and lived with him in Vavuniya.  The applicant alleged that CID officers approached him three times to ask about his brothers-in-law’s activities in the past and that his house was ransacked by CID officers twice. The applicant claimed that the CID ordered the applicant to attend the CID camp to answer questions in May 2012.  The applicant claimed to have fled to Colombo for two months before fleeing to Australia.

The delegate

1. The applicant attended an interview with the delegate on 26 August 2013[14].  In a decision dated 11 October 2013, the delegate refused the application for a protection visa[15].  The delegate, in essence, found that the applicant’s claims lacked credibility.

   [14] CB 132

   [15] CB 131-149

The Tribunal

1. On 17 October 2013, the applicant lodged with the Tribunal an application for review of the delegate’s decision[16] and appointed the same representative to advise and represent him on the review[17].  The applicant attached a copy of the delegate’s decision to the review application[18].

   [16] CB 151-156

   [17] CB 154

   [18] CB 156

2. The applicant’s representative provided further submissions dated 23 July 2014[19].  The applicant was invited to a hearing[20], and attended the hearing before the Tribunal on 20 January 2015. The applicant’s representative was granted leave to appear by telephone[21].

   [19] CB 160-181

   [20] CB 183

   [21] CB195-197

The Tribunal’s decision

1. The Tribunal set out the applicant’s claims as submitted in his statement of claim[22], his supporting documents[23] and noted that his representatives had provided extensive submissions dated 9 September 2013 and 23 July 2014[24].

   [22] CB 203 at [10]

   [23] at CB 204 at [11]

   [24] CB 204 at [12]

2. The Tribunal found[25] that the applicant was a citizen of Sri Lanka. The Tribunal found the applicant’s evidence to be generally vague, inconsistent and lacking in significant detail about fundamental aspects of his claims. The Tribunal considered the applicant’s explanation that he had memory problems, but ultimately concluded[26] that the applicant was not credible. For instance, the applicant gave “incoherent” evidence about where he had lived prior to Colombo[27] and the circumstances which gave rise to him being questioned by the CID[28]. The Tribunal found at [17][29] that the applicant required significant prompting to respond to simple questions about his claims and also found that his responses in relation to when he was questioned by the CID about his brothers-in-law were vague and lacked details[30]. The Tribunal was of the view that the applicant’s changing evidence about whether his house had ever been ransacked by the authorities raised doubts as to his credibility generally[31].

   [25] at CB 204 at [13]

   [26] at CB 204 at [14]

   [27] at CB 204-205 at [15]

   [28] CB 205 at [16]

   [29] at CB 205

   [30] CB 206 at [18]

   [31] CB 206 at [19]

3. The Tribunal had regard to the applicant’s claim that his house was close to Yosef Camp in Vavunya but it was not satisfied that there was a real risk or real chance of harm on that basis[32].  It did not accept that the applicant’s brothers-in-law had been abducted by the LTTE and were forced into training[33]. The Tribunal relied upon country information[34] and was satisfied that the applicant would not be imputed with an adverse political opinion by the Sri Lankan authorities because of his profile as a Tamil from Vavuniya, or that he had goldsmith and chicken businesses, or had travelled to Mullativu regularly.

   [32] CB 207 at [21]-[22]

   [33] CB 209 at [29]

   [34] see CB 209-211 at [30]-[35]

4. On balance, and relying on country information[35], the Tribunal was not satisfied that the applicant had a profile that would mean there was a real chance that he would be harmed on his return by the authorities, his own community or any other group[36].

   [35] see CB 211-214 at [37]-[47]

   [36] CB 215 at [48]

5. The Tribunal accepted that there was a real chance that on his return to Sri Lanka the applicant might be arrested by the authorities and that conditions in prison may be crowded and poor[37]. However, the Tribunal was satisfied that the laws regarding unlawful departure arose from the indiscriminate operation of a law of general application and did not amount to persecution for the purposes of s.91R(1)(c) of the Migration Act 1958 (Cth) (Migration Act)[38].

   [37] CB 217 at [58]

   [38] CB 217 at [59]

6. Accordingly, the Tribunal was not satisfied that the applicant was a refugee under s.36(2)(a) of the Migration Act.

7. The Tribunal relied on its earlier rejection of the applicant’s claims of harm and its assessment of the independent country information to find that there was no real risk of significant harm occurring to the applicant[39].

   [39] CB 219 at [65]-[70]

The present proceedings

1. These proceedings began with a show cause application filed on 3 March 2015.  That application was summarily dismissed by this Court (differently constituted) on 26 March 2015[40].  The applicant appealed to the Federal Court where this Court’s orders were set aside by consent.  The matter was remitted to this Court for reconsideration, differently constituted.  A Registrar made procedural orders for the rehearing on 17 September 2015.

   [40] see ACF15 & Minister for Immigration & Anor [2015] FCCA 729

2. The applicant was given the opportunity to file and serve an amended application and additional evidence.  He has not taken up those opportunities[41].  He continues to rely upon the application filed on 3 March 2015.  The application is supported by a short affidavit filed with it which I received. 

   [41] In oral submissions the applicant put that down to a lack of money and relevant knowledge

3. I also have before me as evidence the court book filed on 18 March 2015. 

4. Only the Minister filed written submissions in advance of today’s hearing in accordance with the Registrar’s orders.

5. I invited oral submissions from the applicant at today’s hearing.  He told me a number of things.  He told me that he did not understand the Tribunal’s decision and had only read it once some time ago.  I explained the Tribunal’s decision to him.  He told me that the grounds of review in the application had been prepared by a person called John.  The applicant was not able to develop any legal argument based upon the grounds advanced.  The applicant was concerned to find out whether he would have a further opportunity to argue his case on the merits before the Tribunal.  I explained to the applicant the concept of jurisdictional error.  I also alerted the applicant to the possibility of him seeking ministerial intervention.  The applicant did not make any other submissions bearing up on this case. 

6. The solicitor for the Minister relies upon the written submissions dealing with the grounds of review.  I agree with those submissions.

7. The application to this Court filed on 3 March 2015 raises three particularised grounds.  The first ground of the application alleges that the Tribunal:

   …did not properly look at my profile and the threat I experienced with the Sri Lankan authorities and they did not consider my brothers-in-law who were involved in the LTTE and my association with the members of LTTE which would give rise to imputed political opinion.

8. The accompanying particulars state that the Tribunal did not consider the applicant’s association with his brothers-in-law and also failed to consider that this would give rise to an imputed political opinion.

9. The Tribunal plainly considered the applicant’s claims about his personal characteristics, association with his brothers-in-law and their involvement with the LTTE but did not accept many of his key claims on the basis of strong adverse credibility findings and was not satisfied that he faced a real chance of serious or significant harm for these reasons[42]. In substance, the applicant disagrees with the Tribunal’s factual conclusions about his claims and evidence but this invites the Court to undertake a review of the merits of the Tribunal’s decision, which it cannot do[43].  The applicant’s first ground of review cannot succeed.

   [42] see CB 207-211 at[22]-[23], [26], [29], [36]

   [43] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

10. The second ground of the application alleges that the Tribunal “did not properly look at my complementary protection”. Again, the particulars to this ground state that the Tribunal did not consider the applicant’s association with his brothers-in-law and that the applicant, being a young Tamil, would face risks from the authorities of Sri Lanka.

11. Contrary to the applicant’s contentions, the Tribunal plainly considered the applicant’s claims under complementary protection[44].  The Tribunal did not accept that the applicant’s brothers-in-law had been abducted by the LTTE and forced into training[45].  Having rejected this aspect of the applicant’s claims, the Tribunal was not required to consider whether this gave rise to complementary protection obligations.

    [44] CB 218-220 at [64]-[72]

    [45] CB 209 at [29]

12. The third ground of the application states that the Tribunal made an error as it “failed to consider the well founded fear” in the applicant’s circumstances. The particulars allege that the Tribunal did not “look at the threat and treatment from the authorities” and the fact that the applicant would have an imputed political opinion. These complaints lack a proper factual foundation. The Tribunal clearly assessed whether the applicant had a well-founded fear under s.36(2)(a) of the Migration Act[46].  Contrary to the applicant’s allegation, the Tribunal set out and considered his claim to fear harm due to the political opinion that would allegedly be imputed to him because he was a Tamil, but was ultimately not satisfied that he would be perceived as having links or associations with the LTTE or as a sympathiser[47]. 

    [46] CB 204 at [13]; CB 218-219 at [61]-[63]

    [47] CB 209 at [29]

13. The gravamen of the applicant’s complaint is a disagreement with the factual findings of the Tribunal’s decision.  Those findings were open to the Tribunal to make, on the evidence before it and for the reasons it gave[48].

    [48] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]

14. The solicitor for the Minister, consistently with the model litigant principle, raised with me in oral submissions an additional matter.  The applicant was represented before the Department and the Tribunal by lawyers who made submissions on his behalf.  One set of submissions was made to the Department following the interview with the Minister’s delegate.  Those submissions are apparently reproduced in the court book, commencing at CB 111.  It is noteworthy, however, that those submissions are dated 13 March 2015. 

15. It seems highly improbable that that is the correct date as the submissions would postdate not only the decision of the delegate but also the decision of the Tribunal.  At [12] of its decision the Tribunal identified the two submissions as dated 9 September 2013 and 23 July 2014.  The second set of submissions, correctly dated, appears from CB 160.  The submissions there made to the Tribunal substantially reproduced what was in the submissions made to the Department, but also made additional submissions.

16. The Tribunal proceeded on the basis that the first submissions were dated 9 September 2013.  That date may also be wrong, as it appears from CB 110 that the submissions were attached to an email sent by the applicant’s solicitor to the Minister’s Department on 29 August 2013.  Whatever the correct date of the first set of submissions was I am satisfied that those submissions as well as the later submissions made to the Tribunal were considered by the Tribunal.  That is apparent from [23] and [24] of the Tribunal’s decision record[49].  No other submissions from the applicant or his solicitors appear in the court book.  I am satisfied that nothing was overlooked by the Tribunal. 

    [49] CB 207-208

17. I conclude that the applicant has not demonstrated that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.

18. I will order that the application filed on 3 March 2015 be dismissed.

19. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,000.  The scale costs in this instance would be $6,825.  The reduced figure reflects the work done on behalf of the Minister and the procedural history of this case.  The applicant did not wish to be heard on costs.

20. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  8 April 2016