ACG15 v Minister for Immigration

[2017] FCCA 1468

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACG15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1468

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal asked the incorrect question – whether the Tribunal failed to address the applicant’s circumstances – whether the Tribunal erred in considering relocation – whether the Tribunal failed to consider the intention to inflict serious harm – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476.

Cases cited:

SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556

Applicant: ACG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 820 of 2016

Judgment of: Judge Street

Hearing date: 28 June 2017

Date of Last Submission: 28 June 2017

Delivered at: Sydney

Delivered on: 28 June 2017

REPRESENTATION

Counsel for the Applicant: Mr A Kumar by direct access

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to rely on the amended application filed on 14 June 2017.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 820 of 2016

ACG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 March 2016, affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant arrived on Christmas Island on 20 June 2012. The applicant applied for a protection visa on 7 November 2012. The delegate interviewed the applicant on 19 August 2013, and refused the grant of the visa on 10 September 2013.

Previous Tribunal decision

1. The applicant applied to a differently constituted Tribunal for review on 2 October 2013, and, by consent, the decision of the previous Tribunal was set aside by an order of the Court made on 4 September 2015 and remitted for determination according to law.

2. The applicant claimed to fear harm by reason of his Tamil ethnicity, support for the Tamil National Alliance, because of a land dispute in Batticaloa with the Tamil Makkal Viduthalai Pulikal (TMVP), and as an illegal departee and failed asylum seeker.

Current Tribunal Decision

1. The applicant was invited to attend a hearing on 1 March 2016, and the applicant attended to give evidence and present submissions, and the applicant was represented by his registered migration agent. The Tribunal identified the relevant law. The Tribunal made reference to the irregular maritime arrival entry interview and the applicant’s claims in relation to confiscation of his land in Batticaloa.

2. The Tribunal summarised the incidents and work history alleged by the applicant. The Tribunal did not accept that the applicant was beaten on every project he worked upon, but did accept the applicant was questioned as he passed through checkpoints prior to the end of the war and then the immediate aftermath after the war. The Tribunal also accepted that part of the applicant’s work involved the payment of bribes to local officials / representatives of political or other groups in power in the areas he worked. The Tribunal referred to the applicant’s concerns of these fees in relation to the TMVP.

3. The Tribunal accepted that the applicant, his wife and mother-in-law were detained by the LTTE in early 2000 in the mother’s home in Batticaloa, that only the applicant was subsequently detained and mistreated by the SLA and that, on his release, he was told not to mention his mistreatment. The Tribunal was not satisfied the applicant was suspected of involvement with any bomb blast or the LTTE.

4. The Tribunal accepted that, between 2002 and 2005, the applicant travelled to Botswana legally for employment. The Tribunal accepted the applicant was employed by the Methodist Church between 2006 and 2008, but did not accept that the applicant was beaten on every project he worked on and did not accept that he was questioned as he passed through checkpoints, particularly prior to the end of the war and in the immediate aftermath of the war.

Consideration of refugee criterion

Support for the Tamil National Alliance

1. The Tribunal was not satisfied there is a real chance that the applicant will re-engage in political activity in Sri Lanka, and was satisfied that this would arise due to a voluntary choice on the applicant’s part. The Tribunal was not satisfied the applicant has a real chance of suffering serious harm in Sri Lanka for reasons of his support of the TNA.

2011-2012 incidents & the wife’s land

1. The Tribunal did not accept that the TMVP would continue to harass the applicant for many years and not to the extent claimed by the applicant if they wished to acquire a parcel of land in Batticaloa. The Tribunal was satisfied that this claim by the applicant had been embellished. The Tribunal provided reasons in that regard, including that it was satisfied that the family would not have continued to reside in that area for as long as they did.

2. The Tribunal was satisfied the applicant was asked to sell land to the TMVP and that he refused and that he was subject to some further requests to sell one parcel of land in Batticaloa. The Tribunal was satisfied the applicant was fearful at that time as the TMVP were capable of acting in a brutal manner. The Tribunal rejected as false that the applicant was ever subject to serious harm by the TMVP in the post-war years, regarding their wish to buy his wife’s land in Batticaloa. The Tribunal was not satisfied the applicant was harmed or harassed in the manner claimed, prior to engaging in work in the Kilinochchi district. The Tribunal was not satisfied the applicant has a real chance of suffering serious harm in Sri Lanka and, more particularly, Batticaloa, because of the claims concerning the TMVP and their desire to acquire land.

As a Tamil from the north and east of Sri Lanka

1. The Tribunal was not satisfied the applicant would have a real chance of suffering persecution for reason of him being a Tamil male from Sri Lanka or a Tamil male from the north or east Sri Lanka or as a Tamil male suspected of supporting the LTTE or Tamil separatist or for any other Refugee Convention ground.

2. The Tribunal was not satisfied that the applicant, with the applicant’s profile, would have a real chance of suffering harm in Sri Lanka for reason of being charged under the PTA or other criminal legislation, and was not satisfied that it was plausible that the applicant would be prosecuted in Sri Lanka.

Illegal Departure

1. The Tribunal was not satisfied that an essential and significant reason for any prosecution of the present applicant for having breached Sri Lanka’s departure laws was for a Refugee Convention reason. The Tribunal was not satisfied the applicant had any profile that would bring the applicant to adverse attention of the authorities. The Tribunal did not accept that the applicant had a real chance of serious harm for any reason in respect of his illegal departure from Sri Lanka.

Offshore Tamil Diaspora

1. The Tribunal was not satisfied there is a real chance the applicant would suffer any harm in Sri Lanka for reason of being suspected of engaging in Tamil separatism or the LTTE, or being supportive of the same.

Failed asylum seeker

1. The Tribunal was not satisfied that the applicant has a real chance of being persecuted, should he be returned to Sri Lanka as a failed asylum seeker or a failed asylum seeker from a Western country or a failed asylum seeker after a prolonged stay outside Sri Lanka or anything approximating the same, in the reasonably foreseeable future.

As a wealthy person

1. The Tribunal was not satisfied there was a real chance of the applicant suffering serious or significant harm for reasons of his wealth in Sri Lanka.

Church activities and faith

1. The Tribunal was not satisfied the applicant would have a real chance of suffering harm in Sri Lanka for reason of his religion or religious work.

Relocation

1. The Tribunal asked itself in relation to the applicant’s claims of harm, including his wealth, the interests of the TMVP in his wife’s former land, his former TNA participation and his church activities, “what if the Tribunal is wrong?”

2. The Tribunal turned to consider whether the applicant could reasonably and safely relocate within Sri Lanka. The Tribunal identified the applicant’s assertion that the TMVP was still interested in him. The Tribunal observed, however, as put to the applicant, the applicant apparently relocated on two prior occasions and did not claim to have been subject to harm. In fact, the applicant had relocated to Colombo and was born in Colombo and lived much of his life in Colombo, and he still had relatives there.

3. The Tribunal accepted that the applicant would have to register with local authorities should he relocate in Sri Lanka. The Tribunal, however, was satisfied that the applicant has embellished his claims about the TMVP and his wife’s land. The Tribunal found that the applicant is no longer interested in political engagement in Sri Lanka and that he has previously relocated safely before. The Tribunal was not satisfied the TMVP or anyone else would attempt to trace him, should the applicant return. The Tribunal was satisfied the applicant and his family – both daughters having relocated from home already, could safely relocate within Sri Lanka.

4. The Tribunal noted that it expressly raised with the applicant whether it was reasonable for him to relocate, raising his language ability, employment capacity, education needs, accommodation and that it all indicated it would not be unreasonable for the applicant and his family to relocate. The Tribunal noted that the applicant did not dispute this. However, the applicant said he would be harmed in Sri Lanka. The Tribunal did not accept this was correct.

5. It was in these circumstances the Tribunal was satisfied the applicant can safely and reasonably relocate in Sri Lanka. The Tribunal did not accept that the applicant had a well-founded fear of persecution for a Refugees Convention reason and was not satisfied there was any other issue that would give rise to real chance the applicant would be subject to serious harm in Sri Lanka for any other reason.

6. The Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations under the Refugees Convention and found that the applicant failed to meet the criteria criterion under s.36(2)(a) of the Act.

Complementary protection

1. The Tribunal turned to the issue of relocation and identified the consideration in relation to “what if the Tribunal is wrong?” in respect of relocation if the applicant would be harmed in Batticaloa. The Tribunal made reference to s.36(2B)(a) and was not satisfied on the evidence that the applicant faced a real chance of suffering persecution for any reason of any claim accepted by the Tribunal and found that the applicant could relocate within Sri Lanka. The Tribunal was not satisfied that the applicant has a real risk of suffering serious harm for reason of any claim accepted by the Tribunal should he relocate. The Tribunal found it was not satisfied the applicant has a real risk of suffering significant harm should he relocate within Sri Lanka for any reason.

2. The Tribunal found that the applicant may safely and reasonably relocate within Sri Lanka. The Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal there is a real risk he will suffer significant harm if returned to Sri Lanka. The Tribunal found that the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Proceedings before this Court

Grounds of the application

1. The ground of the amended application are as follows:

   Ground 1

   1. The Tribunal found that on the alternative basis were there real chance that would be seriously harmed for his status as wealthy person and other reasons CCB 399 - 400; AAT Decision p26-27 at [101]-[108])). The Tribunal finds it is reasonable for the Applicant to relocate to Colombo: CCB 399- 400at [101] - [108])) The Tribunal committed jurisdictional error made findings by having regard to the entirety of issues and I or failing to address all relevant matters in relation to the applicant's circumstances and failed to ask the correct question that the Applicant being a local of Colombo should be sent to Colombo or otherwise has failed to realistically engage with relocation. The erred when it failed to address whether the risk was local and whether the Applicant would be able to avoid such risks.

   Particulars

   1.1 The evidence relied upon by the Tribunal's finding in support the relocation findings does not address at the relevant matters I ask correct questions in relation to the Applicant but relies on the Tribunal's finding on country information.

   1.2 The authorities operate nationally and TMVP operatives would look for the Applicant in Colombo given that the Applicant is expected to be in Batticaloa.

   1.3 The evidence relied upon by the Tribunal's finding in support the relocation findings does not address at the relevant matters (such as family network) but relies on the in the north rather than addressing the relevant issues supporting the conclusion.

   1.4 The Tribunal failed to deal with reasonableness and practicality of relocating in accordance with the Act throughout Sri Lanka when certain parts are Tamil areas.

   1.5 The Tribunal has failed to address the Applicant's claims of fear and relocation having proper regard to the risk.

   1.6 The Tribunal has committed jurisdictional error.

   Ground 2

   2. The Tribunal denied the Applicant's procedural fairness and breached s 425.

   Particulars

   (i) Further particulars would be provided from transcript.

   (ii) Issue as to relocation arose upon review.

   (iii) Issue as to risk to the Appellant arose on review.

   (iv) Issue as to all other parts of Sri Lanka arose on review.

   (v) The Tribunal did not engage with the Applicant on these issues.

   (vi) The Tribunal failed to deal with these issues in procedurally fair manner.

   (vii) The Tribunal committed jurisdictional error.

   Ground 3

   3. The Tribunal committed jurisdictional error regarding the Applicant's detention. The Tribunal erred on question of intention in respect of the Applicant's detention regarding Applicant's illegal departure and thereby committed jurisdictional error. The Tribunal in consideration of the intentional aspects of the detention and impliedly I expressly referred intentions of the players carrying out detention (and has misconstrued the provisions) and erred in construction of the expression “intentionally inflicted” in the definitions of “torture and “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act 1958 (Cth) (Migration Act).

   Particulars

   (a) The Tribunal did not give proper consideration that the Applicant's detention in poor conditions.

   (b) The Tribunal failed to carry out its duties and committed jurisdictional error.

   (c) The Applicant claimed that he would be detained for leaving country illegally.

   (d) The Tribunal accepted that the Applicant may be detained (CB 390) in poor conditions (AAT at 392).

   (e) The Tribunal erred considering the issue of intention and whether in carrying out the duties there intention to inflict serious or significant harm on the question of the Applicant's detention.

   (f) The Tribunal erroneously limited it consideration I erred (CB 402 at [121]) in the construction that the detention for illegal departure:

   (1) the expression “intended to cause”in the definition of “degrading treatment or punishment” in s 5(1) of the Migration Act;

   (2) require an actor to have “an actual, subjective, intention” to inflict pain or suffering, or to cause extreme humiliation, by the actor's acts or omissions, being an intention that cannot be proved by the actor's knowledge of the consequences of the actor's acts or omissions, no matter how certain that knowledge may be.

   (g) (Erred in not addressing that there was intention or not asking the correct question regarding detention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment on the applicant.

   (h) The Tribunal applied the wrong test or asked itself wrong questions when it found that the Applicant would not suffer significant harm.

   (i) The Tribunal committed jurisdictional error.

   (Errors in original)

Consideration of Grounds

Ground 1

1. In relation to Ground 1, Mr Kumar of counsel submitted that the Tribunal had failed to consider the applicant’s circumstances in determining whether the applicant could relocate. Mr Kumar submitted that the Tribunal had failed to consider the harm that the applicant might face from the TMVP if he relocated and that the Tribunal had failed to properly address the issue of his employment in relation to relocation. It is apparent from the transcript that the Tribunal raised with the applicant the issue of whether he could relocate in Sri Lanka. The applicant had formerly relocated to Colombo and had been born in Colombo. On the face of the Tribunal’s reasons, the Tribunal properly considered whether it was practical for the applicant to relocate in his personal circumstances.

2. The adverse finding by the Tribunal that the applicant could reasonably and safely relocate was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. This is not a case where the Tribunal failed to deal with the reasonableness and practicality of relocating, nor did the Tribunal fail to deal with the applicant’s claims in relation to relocation. The Tribunal expressly dealt with the applicant’s claims concerning the TMVP and made dispositive findings that were open. No jurisdictional error as alleged in Ground 1 is made out.

Ground 2

1. In relation to Ground 2, Mr Kumar submitted that the Tribunal has not properly explored the risk of relocation with the applicant in the course of the hearing. On the face of the transcript, the Tribunal gave the applicant a proper opportunity to identify the applicant’s concerns in relation to relocation and there was no failure to comply with s.425 of the Act.

2. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness. Further, on the face of the material before the Court, there was no failure by the Tribunal to engage with the claims raised by the applicant and to make dispositive findings. No jurisdictional error as mentioned in Ground 2 is made out.

Ground 3

1. In relation to Ground 3, Mr Kumar of counsel properly raised this as a formal ground to protect the applicant’s position and accepted that this Court was bound by the decision of the Full Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556. This was a proper course for Mr Kumar to take to protect his client’s interests in relation to the issue raised by Ground 3.

2. This Court is bound by the Full Court’s decision and, accordingly, no jurisdictional error is made out by Ground 3.

Certificate material

1. I note that the first respondent, consistent with its duty as a model litigant, raised to the Court’s attention the existence of a certificate under s.438 and put before the Court the material the subject of that certificate which, on its face, was conceded to be invalid. The first respondent submitted that there was no identification of the material the subject of the certificate in the reasoning of the Tribunal. The first respondent submitted that, on the material before the Court, the nondisclosure of the certificate and the information the subject of the certificate did not give rise to any practical injustice and therefore there was no jurisdictional error.

1. Mr Kumar of counsel did not seek to pursue any issue of alleged jurisdictional error based on the certificate. For the reasons identified in the first respondent’s submissions, that was an appropriate and correct course for Mr Kumar to adopt. No jurisdictional error arises in the present case from the nondisclosure of the certificate or the information the subject of the certificate.

Conclusion

1. No jurisdictional error is made out by the amended application.

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

Date: 18 July 2017