ACI15 v Minister for Immigration

[2015] FCCA 849

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACI15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 849

Catchwords:
MIGRATION –  Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court R.s 2001, r.13.10
Migration Act 1958, ss.476, 425

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: ACI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 541 of 2015

Judgment of: Judge Street

Hearing date: 2 April 2015

Date of Last Submission: 2 April 2015

Delivered at: Sydney

Delivered on: 2 April 2015

REPRESENTATION

Solicitor for the Applicant:

Mr R. Selliah

Rasan T. Selliah & Associates

Solicitor for the Respondent: Ms E. Warner‑Knight
Australian Government Solicitor

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 541 of 2015

ACI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal delivered on 30 January 2015 and referring to the decision of the delegate not to grant the applicant a protection visa. 

2. The application identifies the following grounds:

   1. The Second Respondent engaged in jurisdictional error by (1) not alerting the applicant to material the Tribunal considered adverse to the applicant’s case,(2) not ensuring, as reasonably practical, that the applicant understands why the information is relevant to review, and the consequences of it being relied on in affirming the decision under review and (3) not affording the applicant the opportunity to comment or respond to it, as required by s424A and 424AA of the Migration Act 1958(Cth).

   Particulars:

   1.1 The Second Respondent did not put to the applicant the information (contents) of the Human Rights Commission complaint that " I note that it also contains what appears to be a new claim, to the effect -that he received an 'anonymous' telephone threat from a member of the Army intelligence service in 2008 although it is possible that this is a variant of his claim to have received a threatening telephone call from the CID,  in the context of his dispute with a Buddhist monk", before the decision.

   1.2 The Second Respondent did not put to the .applicant the information (Para 23) that "The Applicant has identified the land as being located in [K] but this is in some ways difficult to reconcile with the documents submitted by him following the hearing which refer to the activities of a Buddhist monk in [V]. One of the media reports appears to confuse the matter further with a reference to '[K], [V]' in [T]. I am satisfied that these two places are quite separate and are not even close to each other, [K] being a suburb of [B] and [V] a village located in [T] District Close to the border with [B]. District."

   2. The Second Respondent engaged in legal error by failing to invite the applicant to give evidence and present arguments relating to an issue under review as required by s425 of the Migration Act 1958 (Cth).

   Particulars:

   2.1 Refer to the Particulars in Ground 1.

   3. The Second Respondent engaged in legal error by rejecting the applicant's claim for want of corroborative evidence.

   Particulars:

   3.1 The Second Respondent, in its Findings and Reasons at Para 19(3), stated that "Although the Applicant claims that he was on a list of persons due to be arrested by the CID as part of a wave of arrests in [T] beginning in late 2011 he has provided no evidence to substantiate the claim and has not explained how he knows he was targeted in this way."

   3.2 At Para 12, the Second Respondent stated, "I have also considered the document said to be the text of a complaint the Applicant lodged with the Human Rights Commission in March 2012 alleging he was under threat because the State Intelligence Services had begun arresting those who held 'temporary refugee identity cards'. He has provided no other documentary support for the claim, however, and there is nothing in the information available to the Tribunal to indicate that people have been arrested on this basis in [T]at any time".

   4. The Second Respondent engaged in legal error by coming to a conclusion that was so legally unreasonable that no reasonable decision maker could have reached it.

   Particulars:

   4.1 The Second Respondent did not accept that the applicant registered a fear of being arrested by the CID when making a complaint to the Human Rights Commission because (a) he did not submit it until after the Tribunal hearing, and (b) the complaint contained a new claim.

   4.2 It was unreasonable to assume that the letter raised a new claim when it was substantially the same as a claim regarding being called by authorities in the context of his dispute with the Buddhist monk.

   5. The Second Respondent engaged in legal error by failing to apply the test under section 36(2)(a) of the Migration Act 1958 (Cth).

   Particulars:

   5.1 The Second Respondent found that it is possible that a claim mentioned in the complaint to the Human Rights Commission was not a new claim but rather a reference to a pre-existing claim.

   5.2 The Second Respondent did not proceed to ask itself whether the test under s.36(2)(a) of the Migration Act 1958 (Cth) would be satisfied if this possibility were accepted.

3. The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. The Court identified to Mr R. Selliah, a solicitor, on behalf of the applicant the Court’s concern that the application failed to disclose any arguable jurisdictional error.  Mr R. Selliah properly conceded that there was no substance in ground 1, and that he did not press ground 1.  Mr Selliah sought to press grounds 2 to 5. 

5. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

6. It is clear from the decision of the Tribunal that the applicant had a genuine hearing. He appeared on 6 January 2015 to give evidence and present arguments, and had the benefit of an interpreter, and the applicant’s adviser also attended the hearing. It is also clear that there were submissions received by the Tribunal on 30 January 2015 after the hearing covering a number of matters which the Tribunal has taken into account. There is no substance in relation to ground 1 that there was any breach of s.425 as alleged or at all.

7. The issues referred to in respect of the alleged particulars of contravention of s.425 are wholly lacking in substance. The matters referred to are part of the evaluation and determination of the credit of the applicant which was a matter for the Tribunal. The assertions in respect of the reasoning process by the Tribunal do not give rise to any non-compliance with s.425. There is no substance in relation to ground 2.

8. Ground 3 is clearly an impermissible challenge to a finding of fact that was made by the Tribunal or to findings of fact made by the Tribunal.  Those findings of fact were clearly open.  In relation to ground 4, the findings of the Tribunal cannot be said to lack an evident and intelligible justification taking into account the matters identified in the Tribunal reasons set out this judgment:

9. In relation to ground 5, this is clearly an impermissible challenge to a finding of fact made by the Tribunal, and there is no substance in the assertion that the Tribunal erred in the findings that were made in relation to s.36(2) in para.54 of the Tribunal’s decision.  Each of the grounds are clearly doomed to failure.  The applicant was found to be a citizen of Sri Lanka and his claims were assessed on that basis.  The applicant made an application for a protection visa on 6 November 2012 which was refused on 15 July 2013.  The applicant applied for a review on 25 July 2013. 

10. The Tribunal has carefully identified the claims and the evidence of the applicant and what occurred at the hearing on 6 January and the content of the submissions that were received thereafter.  The Tribunal relevantly made the following findings:

    17. The Applicant claims to fear serious harm in Sri Lanka on the Convention grounds of his Tamil ethnicity; his actual or perceived political opinion against the government as a Tamil and his membership of the particular social groups consisting of ‘young Tamil men who have been, or are suspected been, active in the LTTE’ and ‘young Tamil men who, additionally, have escaped to and sought asylum in a western country.’    It is also claimed there is a real risk that he would suffer significant harm, specifically torture or inhuman or cruel treatment, on return to Sri Lanka.

    19. I have a number of concerns as to the credibility of the Applicant’s claims that he was at risk of harm from the CID and other authorities because they suspected he had links with the LTTE:

    At the Tribunal hearing he said that when he lived in Verugal he and others in the area received training from the LTTE covering preparations for self defence against bombing by the Sri Lanka military, including by digging shelters, as well as first aid.  The Sri Lanka authorities believed, incorrectly, that weapons training had also been given.  He linked this with the claimed threat of harm from the CID by stating that some of the three hundred people he said were arrested and placed in torture camps had told their parents the reason for their arrest was that they had lived in LTTE-controlled areas and received weapons training there.  This was, however, the first mention he had made of any such training, despite its obvious relevance to his claimed fear of harm from the CID.  It is difficult to understand why he would have left it until the Tribunal hearing to mention such a matter if he understood it to be one of two reasons the CID had for suspecting him of being linked with the LTTE, and I am not satisfied that he provided any convincing explanation at the hearing for its sudden emergence.  I find this casts strong doubt over the credibility of his claim to have received such training.

    The Applicant’s other reason for fearing harm from the CID is simply that he lived for some time in an area controlled by the LTTE – apparently his village of Verugal - and that in 2007 he was photographed by the police and CID when he returned there.  From his evidence at the hearing I accept that he was photographed at this time, in the course of issuing him with an identity card as an internally displaced person.  I am satisfied that this is the document, issued by the Trincomalee police and expiring in April 2008, which he submitted to the Department.  However, there is nothing to indicate that simply being photographed by the police in order to provide him with an identity card was anything but a routine procedure.  I am not satisfied it is plausible that such a procedure, which was followed in the case of many thousands of people in the district displaced by fighting during the civil war, led to their being arrested and placed in ‘torture’ camps in late 2011- early 2012 as he claims.  Nor am I satisfied it is plausible that simply having lived in an LTTE-controlled area, also an experience shared by very large numbers of people, caused people to be arrested in this period. 

    Although the Applicant claims that he was on a list of persons due to be arrested by the CID as part of a wave of arrests in Trincomalee beginning in late 2011 he has provided no evidence to substantiate the claim and has not explained how he knows he was targeted in this way.  As put to him at the hearing, the CID or other authorities would have had ample opportunity to locate and arrest him during this period had they had any interest in doing so.  His evidence at the hearing was that he went to live with his brother in his own village of Verugal for two months and then in his sister’s house, in Kallady, where his mother was also living.  I do not accept that these attempts at concealment could have been sufficient to prevent the CID, other government agencies or paramilitary forces from finding him.  I note his suggestion that the reason the CID failed to take action against him was that they were preoccupied in carrying out the other arrests and gathering information but I consider that his ability to live unmolested in Sri Lanka for five or six months before he left for Australia at the end of May 2012 points strongly against him having been of any interest to them or other agencies of the Sri Lanka government. 

    I am reinforced in this view by the fact that the Applicant was able to obtain a passport in his own name in May 2007, the same year he was photographed by the police in connection with his IDP identity card.  I consider this to be an indication that he was not adversely known to the authorities at that time.  I am not satisfied that the ease with which he obtained his passport can be plausibly explained by a failure of communication between the passport issuing authorities and the CID, as he suggested at the hearing.

    Finally, even if he was arrested and beaten in Batticaloa in January 2005 following a bombing, as he claimed at the protection visa interview, the fact that he was able to go about his life for a further seven years in Sri Lanka without suffering any other form of harm from the authorities indicates that they did not harbour any continuing suspicions of him over such an incident.

    20. Taking these matters together I am not satisfied that the Applicant was targeted by the CID or other authorities in late 2011, either because he had been issued with an identity card in 2007 or for any other reason.

    21. … This, however, refers to those who went missing after the re-taking of the Eastern Province from the LTTE in 2007 and I am not satisfied that it has any direct relevance to the Applicant’s claims of the arrest of three hundred persons in Trincomalee beginning in late 2011. 

    22. I have also considered the document said to be the text of a complaint the Applicant lodged with the Human Rights Commission in March 2012 alleging he was under threat because the State Intelligence Services had begun arresting those who held ‘temporary refugee identity cards.’ 

    …

    Taking these matters together I am prepared to accept that the Applicant did make a complaint to the Human Rights Commission in March 2012 but I am unable to be satisfied that in doing so he registered a fear of being arrested by the CID (or the State Intelligence Services) on the basis of having been issued with an identity card in 2007, as stated in the document he has submitted. 

    23. … As to his further suggested reason - his opposition to the spread of Buddhism - this has been left entirely unexplained by him and there is nothing in the information before the Tribunal to indicate that he ever took any action, outside the context of the dispute over his sister’s land, to oppose the monk in particular or the Buddhist religion in general.

    24. Given these considerations I am not satisfied the Applicant was ever of adverse interest to the CID or other authorities in Sri Lanka because he was imputed with a political opinion adverse to the government – arising either through suspicion of involvement with the LTTE or because of a land dispute with a Buddhist monk.  I am not satisfied that he was ever targeted by the authorities or that they intended to arrest him or otherwise harm him for this reason.  Nor am I satisfied he was at risk of harm at the hands of the monk himself, despite some threats having been made by telephone.  This being the case, and in the absence of any indication that the situation has changed since he left in 2012, I do not accept there is a real chance that he would suffer harm for this reason should he return to Sri Lanka.

    25. I have also considered whether the Applicant’s Tamil ethnicity and his status as a failed asylum seeker would serve to cast additional suspicion on him as holding a pro-LTTE political opinion.

    26. Nor am I satisfied that simply because the Applicant is a Tamil - or more specifically because he is a young Tamil male from the Eastern Province - he would be suspected for that reason of holding a pro-LTTE or anti-government political opinion. 

    27. However, as also discussed below, having considered the information on the treatment of returnees to Sri Lanka cited in the delegate’s decision record and in the submissions, together with reporting provided by DFAT I am not satisfied it supports a conclusion that returning Tamils are suspected of having links with the LTTE simply because they have sought asylum in Australia.  I am not satisfied that the Applicant would be imputed with a pro-LTTE political opinion for this reason. 

11. The Tribunal clearly took into account the applicant’s ethnicity and relevantly found:

    32. Taking this information together, I am not satisfied it indicates that those Sri Lankans who are ethnically Tamil now face a real chance of serious harm simply because of their ethnicity, or that associated factors such as being a young male or having geographic origins in the North or East of the country put them at greater risk of such harm.  I am not satisfied the information supports a conclusion that the Applicant himself faces a real chance of serious harm on return to Sri Lanka because of his ethnicity.  Nor am I satisfied that the fact he is a young male and has his origins in the Eastern Province of Sri Lanka would operate to exacerbate the fact of his Tamil ethnicity so as to create a real chance that he would suffer such harm. 

    34. While DFAT reporting does indicate that Tamils continue to face some degree of societal discrimination I am not satisfied that this can reasonably be seen as rising to the level of serious or significant harm.  Nor am I satisfied, on the information available to the Tribunal, the Tamils are subjected to serious or significant harm through being denied political, economic, religious or other rights.

12. The Tribunal turned to the issue of the applicant being a member of a particular social group and relevantly found:

    36. As noted, I am not satisfied that the Applicant has ever come under suspicion as a person active in the LTTE and it follows I do not accept he is a member of the first particular social group suggested.  I do accept that if he were to be returned to Sri Lanka he could be said to be a member of the second suggested particular social group, a fact which would most likely be apparent to the authorities by the circumstances of his arrival.

    42. On the basis of this information I have concluded that standardised procedures apply to all returnees, regardless of their ethnicity, that they are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service (SIS) and the airport Criminal Investigation Department (CID) and that police and security clearances, including checks with the person’s local police station, may take some hours.  If checking reveals outstanding arrest warrants for prior criminal offences, or if there are alerts in immigration watch-lists, returnees may be subject to further questioning.  Additional questioning would also be involved if the person were of security interest or if there were evidence of involvement in people smuggling. 

    45. Taking this information together I am not satisfied that the Applicant would face a real chance of serious harm at the hands of the authorities on return to Sri Lanka, either at the airport or after his return to his home, because he had sought asylum in Australia.

1. The Tribunal also turned to the issue of unlawful departure and relevantly found:

   50. Having considered the relevant country information I am satisfied that Sri Lanka’s law regarding unlawful departure is a law of general application which is appropriate and adapted to meet a legitimate national interest in regulating the security of the country’s borders.  I am also satisfied that the law, which provides for penalties including fines and imprisonment and which involves suspects being arrested and possibly held in remand awaiting a bail hearing, is not selectively enforced or enforced in a discriminatory way on the basis of a Convention reason, but is instead applied to all Sri Lankans found to have departed illegally, regardless of their race or other personal circumstances.

   51. Further, on the basis of the available information concerning the enforcement of this law I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would face more than questioning at the airport on arrival, detention for a brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined.  I am not satisfied that, if convicted on a charge of leaving the country this offence, either on arrival or at any subsequent point.  Nor am I satisfied that the treatment could reasonably be seen as constituting serious harm for him. 

   52. Taking these considerations together I am not satisfied there is a real chance that the Applicant would suffer serious harm in Sri Lanka because he has sought asylum in Australia, because he left the country unlawfully or because of some combination of these circumstances.  Nor, to state this conclusion alternatively, am I satisfied he faces a real chance of serious harm because of his membership of a particular social group consisting of or, expressed differently, because of his membership of the particular social group consisting of ‘young Tamil men who have escaped to and sought asylum in a western country.’

2. In that circumstance the Tribunal came to the conclusions found in paras.[53] to [54]:

   53. In the light of all the information before the Tribunal, considered individually and cumulatively, I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would suffer serious harm amounting to persecution for the Convention reasons of his Tamil race, his actual or imputed political opinion or his membership of a particular social group.  He does not claim to fear serious harm for any other Convention reason and no other reason is apparent on the face of the information before the Tribunal.

   54. I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Sri Lanka, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

3. The Tribunal addressed the issue of complementary protection and made adverse findings in relation to the applicant in respect of those criteria.  I am satisfied that the proceedings are clearly doomed to failure.  The proceedings clearly have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April2015