ACY15 v Minister for Immigration

[2016] FCCA 1262

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACY15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1262

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – no grounds of jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36(2), 36(2A), 36(2B)(c)
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: ACY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 445 of 2015

Judgment of: Judge Hartnett

Hearing date: 16 May 2016

Delivered at: Melbourne

Delivered on: 16 May 2016

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Gamgemi

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 445 of 2015

ACY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) made on 9 February 2015.  The application for judicial review was filed on 6 March 2015. 

2. The grounds of application are as follows:-

   “1. The Tribunal erred by not assessing that depriving my livelihood as a fisherman before leaving Sri Lanka is amount to significant harm under section 36(2) of the Migration Act.

   2. The Tribunal fell into jurisdictional error by not assessing the integer of my claims as a Young Tamil Hindu with suspected LTTE association.

   3. The Tribunal by not assessing my claims cumulatively fell into jurisdictional error.”

3. The First Respondent filed a response on 19 March 2015 seeking dismissal of the application with the Applicant to pay the First Respondent’s costs of the proceeding on the ground that the decision under review is not affected by jurisdictional error.

4. The proceedings came before Registrar Allaway on 10 June 2015 and the Court on that day made a number of orders by consent.  Included in those orders were orders listing the matter for final hearing at 2pm on 16 May 2016, and a further order requiring the Applicant to file and serve by 11 April 2016 an amended application, if any, and written submissions.  The Applicant did not amend his application, and nor did he file any written submissions.

5. The First Respondent filed written submissions in accordance with the orders of Registrar Allaway of 10 June 2015, and those contentions of fact and law are dated 2 May 2016 and are before the Court.   The Court has also the evidence as contained in the Court Book, filed on 11 February 2016 by the First Respondent.

6. At the commencement of the hearing on 16 May 2015, the Applicant requested an adjournment of the proceedings on the basis that he wanted “more time”.  The Applicant was assisted at the hearing before the Court by an interpreter in the Tamil (Sri Lankan) and English languages.  He was a litigant in person. 

7. The Applicant sought an adjournment on the basis that he did not have legal representation.  The application for an adjournment was refused.  The Applicant has had a period of over one year to obtain legal representation in this proceeding.  He has had a period of in excess of 11 months to obtain legal assistance, following the making of the consent orders which required him to file and serve any amended application and written submissions.

8. He submitted to the Court that he had, indeed, sought legal representation but been unable to obtain any. No evidence was put before the Court by the Applicant as to any attempts made by him, nor the timing of any such attempts. No evidence was put by the Applicant, other than his submission that he had been unable to secure legal assistance, that there was any prospect of him receiving legal assistance either in the past or future.

9. The First Respondent communicated with the Applicant on 20 March 2015 and in that correspondence said, relevantly, as follows:-

   “…

   3. We note that you are not legally represented.  Proceedings in   the Federal Circuit Court entail very complex legal issues and you may wish to seek legal assistance with your application.

   4. You could contact Victoria Legal Aid on 03 9269 0234, located at 350 Queen Street, Melbourne, to make an appointment for general advice.  The Asylum Seeker Resources Centre (214-218 Nicholson Street, Footscray;  03 9326 6066) or the Refugee Immigration Legal Centre (Level 1, 121-123 Brunswick Street, Fitzroy, 03 9413 0101) may also be able to assist you. The Law Institute of Victoria (470 Bourke Street, Melbourne; 03 9607 9311) can provide you with contact details for a number of specialist immigration lawyers, who provide legal services on a professional fee basis.

   5. We suggest that you make contact with these organisations urgently if you propose to seek legal advice or assistance with your application, as our client will not agree to delay the proceeding if you fail to act promptly in this matter.”[1]

   [1] Letter from Australian Government Solicitor to the Applicant dated 20 March 2015.

10. The Court indicated to the Applicant that his, in effect, request for an adjournment was refused. 

11. The Applicant was asked by the Court whether he wished to make oral submissions in the matter. The First Respondent’s contentions of fact and law had been translated to him and he was familiar with them.  The Applicant indicated that he wished to make oral submissions but those submissions were brief and went to two matters:-

    a)the Applicant wanted “more time”; and

    b)whether the Applicant could appeal the Court’s decision on the substantive matter. That question having been answered in the affirmative for the Applicant, the Applicant indicated that he would.  I note at that time the Court had not made its decision.

Background

1. The Applicant is a citizen of Sri Lanka.  He is of Tamil ethnicity and Hindu religion.  He was born and lived predominately in Udappu, a small Tamil village in a predominantly Sinhalese district of Sri Lanka.  His parents and three sisters live in Udappu.  He worked as a fisherman for his father and occasionally travelled to other areas of Sri Lanka.  In March 2011, he went to work in Dubai as a cleaner and returned in May 2012.  He left Sri Lanka by boat on 1 June 2012.

2. The Applicant entered Australia as an unauthorised maritime arrival on 20 June 2012.  On 19 November 2012, he lodged his application for a Protection (Class XA) visa (‘the visa’).  On 10 September 2013, a delegate of the Minister refused to grant the Applicant the visa.

3. On 27 September 2013, the Applicant applied to the Tribunal for review of the delegate’s decision. 

4. On 11 November 2014, the Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to the issues arising in his case.  A response to hearing invitation form was enclosed with the invitation to hearing.  That response to hearing invitation was completed by the Applicant’s authorised representative who represented the Applicant before the Tribunal. 

5. On 19 January 2015, the Applicant attended a hearing before the Tribunal to give evidence and present arguments.  He was assisted by an interpreter in the Tamil, Sri Lankan and English languages and his registered migration agent. Prior to the hearing, the Applicant’s migration agent had lodged detailed submissions with the Tribunal on the Applicant’s behalf.

The Tribunal

1. On 9 February 2015, the Tribunal made its decision affirming the delegate’s decision and on 6 March 2015, the Applicant applied to the Court for judicial review.

2. The Applicant’s claims before the Tribunal were primarily set out in the statutory declaration accompanying his Protection visa application and a subsequent statutory declaration submitted to the Tribunal.

3. The Applicant’s claims were summarised by the Tribunal as follows:-

   a)he claimed to be from Udappu where he worked as a fisherman;

   b)he claimed that in 2009, the army established a presence in Udappu.  He claimed his family was routinely questioned and that the army harassed his mother due to her being born in Kilinochchi.  In 2010, he was interrogated by the army.  They raided his house and he was detained at a nearby police station; 

   c)he was asked about the LTTE and his mother’s birthplace. He was beaten with a stick and tortured. He claimed he was held overnight at the army camp in a room with five to six others.  At his interview with the delegate, he said he was held with two to three other people for two to three hours and released (his first claim was in his statutory declaration);

   d)the Applicant claimed two days after his release the CID attended his home.  His family said they were unaware of his location.  His family was visited several times by the CID on a monthly basis.  His father was twice beaten by CID members inquiring about his whereabouts.  He went into hiding at his aunt’s house for three months.  He departed Sri Lanka in March 2011 but the CID came twice whilst he was in Dubai.  Within three days of returning in May 2012, the CID visited his parents and asked about him.  He was in his aunt’s house at the time.  Around three days later, the CID came again and asked for him and his mother said she did not know;

   e)he claimed that since he had left Sri Lanka the police had visited his home in July and September 2012 and then in April or May 2014.  His father went to live in Jaffna for 1.5 months after this last visit;

   f)the Applicant then departed Sri Lanka illegally.  He claims to fear harm for reason of his Hindu religion, Tamil ethnicity and imputed connection to the LTTE as a young Tamil male and because of his unlawful departure.

Tribunal’s findings 

1. The Tribunal found the Applicant was not a credible witness. The Tribunal said at paragraphs 32 to 34 of its Statement of Decisions and Reasons (‘the Decision Record’) the following:-

   “32. I have considered carefully the applicant’s claims but I do not consider him to be a credible witness.  I do so for the following reasons:

   ·    There is no plausible or credible reason as to why the applicant has been the subject of such consistent and ongoing interest from the authorities as he has claimed.  He told the Tribunal that his mother was born in and had lived in Kilinochchi before she was married.  The applicant was born in 1988 and he told the Tribunal that his mother had got married and moved to Kilinochchi before then.  The only reason advanced by the applicant as to why the authorities have had an adverse interest in him over a sustained period is that his mother was born there.  I have taken into account that Kilinochchi was the political and administrative headquarters of the LTTE but his mother’s presence there was more than two decades prior to the claimed interest in her and the applicant.  The applicant was born in Udappu and lived there all his life before travelling to Dubai in March 2011.  The applicant has not claimed that he or any family member has ever been involved in the LTTE.  The war had already ended in 2009 with the defeat of the LTTE.  In all these circumstances, I do not accept that he has been the subject of regular, ongoing adverse interest of the authorities as he has claimed.

   ·    The applicant claims that after his detention in late 2010 he went to live at his aunt’s house until he departed Sri Lanka for Dubai in March 2011. He told the Tribunal that his aunt lived in the same village about 20 minutes’ cycle away. He said that his mother had four sisters and his family did not give the authorities his aunt’s address.  He said that as far as he was aware, the authorities had not gone to any of his relatives’ homes to look for him.  The applicant had claimed that he has been the subject of a strong and continual interest of the authorities for several years with 10 visits (as per his statutory declaration of 12 January 2015) to look for him. It is not credible that if he was of such a major interest that the authorities would not have made greater attempts to locate him including going to a family member’s place in the same village.  That they did not do so detracts from the credibility of his claims.

   33. Given these highly significant credibility matters, I do not accept that his family was routinely questioned and harassed.  I do not accept that in 2010 he was interrogated by the army.  I do not accept that they raided his house and he was detained at a nearby police station/army camp. I do not accept that he was asked about the LTTE and his mother’s birth place.  I do not accept that he was beaten with a stick and tortured.  I do not accept that he was required to sign a document when he was released.

   34. I do not accept that two days after his release, the CID attended the applicant’s home.  I do not accept that his family said they were unaware of his location. I do not accept that his family was visited on multiple occasions by the CID. I do not accept that his father was twice beaten by CID members enquiring about his whereabouts. I do not accept that he went into hiding at his aunt’s house for three months.  I do not accept that after he departed Sri Lanka in March 2011 the CID came twice whilst he was in Dubai.  I do not accept that within three days of returning in May 2012, the CID visited his parents and asked about him.  I do not accept that around three days later the CID came again and asked for him and his mother said she did not know. I do not accept that since he left Sri Lanka, the police have visited his home in July and September 2012 and then in April or May 2013. I do not accept that his father went to live in Jaffna for 1.5 months due to these claimed visits. I do not accept that the applicant is or has been of any adverse interest to the authorities or anyone else for any reason (including his mother’s birth and period of time in Kilinochchi or due to any imputed pro-LTTE views).”

2. The Tribunal considered the claim made by the Applicant at the hearing, that being a Hindu made his situation worse, having regard to DFAT country information. The Tribunal concluded that the chance of the Applicant being seriously or significantly harmed on the basis of his religion was remote.

3. The Tribunal found the chance or risk that the Applicant would be persecuted or significantly harmed on account of being a young Tamil male to be remote. Based on his individual circumstances and the overall weight of the country information, the Tribunal found the Applicant did not face a real chance of persecution on account of his Tamil race, membership of particular social groups including young Tamil males, or his actual or imputed political opinion or any other Convention[2] reason now or in the reasonably foreseeable future from the authorities, paramilitary groups or anyone else.  Likewise, based on his individual circumstances and the overall weight of country information, the Tribunal found there were not substantial grounds for believing that as a necessary and reasonable and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka that there was a real risk that he would suffer significant harm on these bases. 

   [2] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

4. The Tribunal assessed the Applicant’s claims to fear harm because of his Tamil ethnicity and had regard to country information referred to by the applicant’s agents.  The Tribunal, however, gave substantial and greater weight to independent and authoritative information from the UNHCR and DFAT.

5. The Tribunal considered the Applicant’s claim that he would face harm as a failed Tamil asylum seeker on return to Sri Lanka, and also considered his illegal departure.  While the Tribunal accepted that those with an actual or perceived association with the LTTE may face a risk of harm, the Tribunal was not satisfied that returnees generally are regarded as having links with the LTTE or opposed to the government simply because they had been in Australia.  The Tribunal did not accept that if the Applicant returned to Sri Lanka he would be perceived by authorities as someone with a link to the LTTE or that any questioning upon his return would constitute serious or significant harm. 

6. The Tribunal considered country information and found, based on the Applicant’s individual circumstances and the independent country information, that the Applicant did not face a real chance of persecution now or in the reasonably foreseeable future if he were to return to Sri Lanka as a failed asylum seeker, whether that was characterised in terms of the Convention grounds of any actual or imputed political opinion or membership of a particular social group (such as failed asylum seekers or Tamil failed asylum seekers or returnees or failed Tamil asylum seekers returning from a western country or failed asylum seekers involuntarily returned to Sri Lanka).  Further, based on the Applicant’s individual circumstances and the independent country information, the Tribunal did not accept there was substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka that there was a real risk he would suffer significant harm on that basis.

7. The Tribunal considered the Applicant’s claim of fear of harm as a consequence of his illegal departure from Sri Lanka and had express regard to country information regarding the operation of the Immigrants and Emigrants Act 1948 and the likely consequences the Applicant would face for breaching that law.  The Tribunal concluded the legislation was a law of general application and that its enforcement did not constitute discriminatory conduct as it was not selectively enforced and did not have a different impact on different groups.

8. The Tribunal then considered whether the legal consequences that the Applicant faced for breaching the Immigrants and Emigrants Act 1945 (Sri Lanka) constituted “significant harm”. The Tribunal was not satisfied that the Applicant facing questioning, arrest, short-term detainment prior to immediate bail and the imposition of a fine amounted to significant harm under s.36(2A) of the Migration Act 1958 (Cth) (‘the Act’). In particular, because of the very short length of any detention, the Tribunal did not consider that the prison conditions would constitute significant harm and found that any risk of torture or mistreatment while in prison was remote. Furthermore, the Tribunal found that any risk of significant harm the Applicant faced in prison was a risk faced by the population generally and not faced by the Applicant personally so that the exclusion in s.36(2B)(c) of the Act applied.

9. Having assessed the Applicant’s individual circumstances and the independent country information cumulatively, the Tribunal concluded the Applicant did not meet the criteria in s.36(2) of the Act for the grant of a visa and affirmed the Minister’s delegate’s decision.

Consideration

1. The grounds of review as contained in the Applicant’s judicial review application do not establish the Tribunal’s decision is affected by jurisdictional error.  In respect of the first ground, nowhere before the Tribunal does the Applicant, in fact, advance a claim to fear harm in the form of being deprived of his livelihood as a fisherman.  The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.[3] 

   [3] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263.

1. It is clear in a consideration of the Tribunal Decision Record that the Tribunal did not fail to assess any integer of any of the claims made by the Applicant.  Each of the claims made by the Applicant, including the Applicant being young, a Tamil, Hindu and someone suspected of LTTE associations, were considered by the Tribunal both individually and cumulatively and expressly rejected by the Tribunal. 

2. As to the Applicant’s third ground, as submitted by Counsel for the First Respondent, it is clearly without merit, as the Tribunal gave express consideration to the Applicant’s claims on a cumulative basis. 

3. It was open to the Tribunal to make findings on credibility in relation to the Applicant’s claims as part of its function as the decision-maker par excellence.[4] The Tribunal carefully considered the Applicant’s claims as put before it. The Tribunal’s reasoning is apparent in its Decision Record.  It made findings of fact open to it on the evidence before it.  It is well-established that the weight to be given to relevant country information is a matter for the Tribunal.[5] The Tribunal canvassed significant country information and considered the Applicant’s claims in the context of the country information before it. That country information included that referred to the Tribunal by the Applicant’s agent.

   [4] Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.

   [5] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, [211].

4. No jurisdictional error attends to the decision of the Tribunal and the application is dismissed. Costs shall follow that dismissal.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 24 May 2016