ACZ15 v Minister for Immigration
[2015] FCCA 2987
•7 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACZ15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2987 |
| Catchwords: MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to take into account all of the applicant’s claims – whether the Tribunal considered the applicant’s circumstances upon return to Sri Lanka – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 476 |
| Cases: Minister for Immigration & Border Protection v SZSCA (2014) 89 ALJR 47 NALZ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 270 |
| Applicant: | ACZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 564 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 7 October 2015 |
| Date of Last Submission: | 7 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 7 October 2015 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitor for the Respondents: | Mr K. Eskerie, Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs set in the amount of $5800.
The name of the second respondent be amended to Administrative Appeals Tribunal.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 564 of 2015
| ACZ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
Background
The applicant is a citizen of Sri Lanka. He claims that he was a fisherman when he lived in Sri Lanka and that for a period of time he was forced by the Liberation Tigers of Tamil Eelam (LTTE) to smuggle ammunition and weapons for them. He claims that as a consequence, he faced persecution from the authorities in Sri Lanka and had to flee to seek protection in Australia. He also claims that because he left Sri Lanka illegally and sought asylum in Australia and was a Tamil, he would be targeted upon return to Sri Lanka and suffer harm.
The applicant applied for a protection visa on the basis of these claims, and when that application was rejected by a delegate of the Minister, he applied to the Tribunal for review of that decision. He appeared before the Tribunal to give evidence at a hearing on 13 January 2015.
On 18 February 2015, the Tribunal made its decision to affirm the delegate’s decision. The Tribunal rejected the applicant’s claims to have been forced by the LTTE to smuggle arms for it. The Tribunal found that while he may be detained or imprisoned for a relatively short period due to his illegal departure from Sri Lanka, and may be fined from 5000 to 50,000 Sri Lankan rupees, that would neither amount to persecution nor significant harm within the meaning of the Migration Act1958 (Cth). For those reasons, it found that the applicant did not satisfy the criteria for grant of a visa and affirmed the delegate’s decision.
The applicant now applies to this Court under s.476 of the Migration Act for judicial review of the Tribunal’s decision.
Before proceeding to examine the grounds upon which that application is brought, it is necessary to explain the limitations of this Court’s jurisdiction. Essentially, in order to grant the relief sought by the applicant, the Court must be satisfied that the Tribunal’s decision was affected by jurisdictional error, in other words, that it is a decision that is not authorised by the Migration Act.
There are many ways in which a decision might fall within that description. For example, the Tribunal might have failed to comply with an obligatory procedural matter such as holding a hearing, or it might have misunderstood the law that it was applying.
However, to the extent that it made findings of fact that were open on the material before it, any mistakes in those findings do not constitute jurisdictional error. As will be seen, the applicant’s ultimate complaint in this case is that the Tribunal was wrong to reject some of his essential claims. The error complained of does not amount to jurisdictional error.
Applicant’s claims
It is necessary to briefly return to the applicant’s claims and then to the Tribunal’s reasons for rejecting those claims before considering the applicant’s arguments. In his visa application, the applicant said that since approximately 2001, he worked as a fisherman until he was forced to flee Sri Lanka after he was sought by the Sri Lankan Criminal Investigation Department (“CID”). He said that since 2002, he was forced to work for the LTTE smuggling weapons in Indonesian waters. At some point at the end of 2006, while he was in Indonesian waters, the Indonesian authorities arrested him. He was detained for approximately eight months and then deported to Sri Lanka with the other crew. The applicant said that as he returned to Sri Lanka with the help of the International Organisation for Migration (IOM), he was not targeted by the Sri Lankan authorities when he landed at the airport. However, a few days later, Sri Lankan CID officers came in search of him. Fortunately, he was not at home.
The applicant fled to India illegally sometime in August 2007 and remained there until June 2012, residing in an Indian refugee camp. Fearing that the Indian authorities would return him to Sri Lanka, the applicant fled India and eventually arrived in Australia on 28 June 2012. He claimed that the authorities were aware of the role that he had played in the past in smuggling weapons and goods for the LTTE, and so was at risk of being harmed and possibly killed by the Sri Lankan authorities. He also claimed that, having fled Sri Lanka illegally, and having claimed asylum in Australia, that would increase the likelihood and risk of being harmed.
As I have already mentioned, a delegate of the Minister decided to refuse to grant the applicant a visa, and the applicant applied to the Tribunal for review of that decision. The applicant was represented by lawyers for the purpose of that review who made a number of written submissions on his behalf. Those submissions were essentially based upon the factual claims that are outlined above.
Tribunal’s decision
The Tribunal made its decision on 18 February 2015. Whether or not the applicant would have qualified as a refugee on the basis of his smuggling activities for the LTTE would have raised interesting questions of law: see NALZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 270; Minister for Immigration & Border Protection v SZSCA (2014) 89 ALJR 47 at [38] per Gageler J. However, the Tribunal rejected those claims. The Tribunal gave a number of reasons for that rejection, including that the applicant’s evidence in respect of the control of certain areas by the LTTE was inconsistent with other evidence given by him; that some of the evidence given, as to details, was very vague; that he had given inconsistent evidence in earlier stages in the protection visa process and that the Tribunal’s view; and, that his explanation about his recruitment by the LTTE was implausible. The Tribunal did not accept the applicant was a credible witness for those reasons. It did not accept that the applicant had any association with the LTTE in Sri Lanka.
Further, it did not accept that the authorities suspected that he was working for the LTTE, that they looked for him following his return in August 2007 or that they would look for him in the future. It found that the applicant’s claims about his past had been fabricated. It then turned to consider the other claims based upon his ethnicity, where he came from and his potential return as a failed asylum seeker. In each of those respects it relied upon a report from the Department of Foreign Affairs and Trade dated 16 February 2015 which set out recent information concerning the risk of harm to various groups or members of various groups in Sri Lanka. It found that the applicant did not have any of the characteristics which might give rise to a risk of harm upon return.
The Tribunal then turned to consider the consequence of the applicant having left Sri Lanka illegally. In this respect, it found that the applicant may be detained or imprisoned for a relatively short period under the Immigrants and Emigrants Act but that that Act was a law of general application which was appropriate and adapted to achieving a legitimate aim of Sri Lanka and was proportionate to that object. It found that the Act was not discriminatory in its terms or intention, including its impact, and that it was not enforced in a discriminatory manner. For that reason, it found that the detention or imprisonment was not persecution.
The Tribunal did not accept that there was a real risk that the applicant would suffer significant harm during that period. The reference to “that period” must be a reference to the short period which the Tribunal accepted the applicant might be detained: see [94] of its reasons. The Tribunal did not accept that, as a Tamil failed asylum seeker, the applicant would be imputed to have an anti-government and/or pro-LTTE political opinion or that, as a failed asylum seeker from the west he would be imputed with the political view of opposing the government in Sri Lanka or having an anti-government or pro-LTTE political opinion. It also made the same finding on the basis that the applicant was a Tamil.
The Tribunal next stated at [96] of its reasons:
The Tribunal has also taken into account the information about conditions in detention and prison in Sri Lanka. Because those conditions are a consequence of the application of a law of general application, which is not discriminatory in its terms, intention, impact or enforcement, including the conditions suffered as a consequence of its application, the conditions suffered during detention are not persecution. The Tribunal does not accept that there is a real risk that he will suffer significant harm as defined in the Act during any period of detention or imprisonment.
It accepted that the applicant may be questioned by the CID or other Sri Lankan authorities after he has returned to his hometown but did not accept that that would amount to serious harm or that there was a real risk that he will suffer significant harm for that reason. Finally, it considered whether or not the applicant might suffer harm as a member of a particular social group, namely, people who are considered to be wealthy. This was a submission made in one of the written submissions by the applicant’s lawyers but was rejected by the Tribunal as it did not fit the applicant’s circumstances.
For all of those reasons, the Tribunal found that the applicant did not satisfy the criteria for the grant of the protection visa.
Consideration
The grounds in the applicant’s amended application are that the Tribunal made an error of law, being that it failed to find a Convention nexus, namely, that a person had links to the LTTE. The failure to find a nexus is not necessarily jurisdictional error. It might be one where the findings of fact actually made by the Tribunal would leave only that conclusion open on a proper understanding of the law.
However, that is not the case here. The Tribunal rejected any connection with the LTTE as a matter of fact, principally, because it found that the applicant’s evidence about his connections with the LTTE were not credible. It gave a number of reasons for that conclusion which reveal not only that it had considered all of his evidence but, also, that it had a logical or a reasonable basis for rejecting it. In light of that, the real purport of this ground is that the applicant takes issue with the Tribunal’s finding of fact. In other words, he argues that the Tribunal should have found that he had connections with the LTTE. However, such a submission goes only to the merits of the Tribunal’s decision and does not establish any jurisdictional error.
At the hearing today the applicant explained that the Tribunal did not understand his case clearly. I take that to mean, essentially, that the Tribunal was wrong to reject his claims. That may well be so but that does not establish jurisdictional error and, as I have explained above, this Court is limited to acting in circumstances where there is jurisdictional error in the Tribunal’s decision.
During the hearing I asked Mr Eskerie, who appeared for the Minister, about [96] which is set out above. In particular, the second and last sentences of that paragraph appear to raise some difficulties. It appears odd to say, as the Tribunal does, that the conditions in prison are the consequence of the application of the law of general application.
However, I accept the Minister’s submission that that sentence ought to be read as meaning the following: any harm suffered by the applicant as a result of the conditions in detention and prison were brought about not for any Convention reason but because he had contravened a law which was not in any way discriminatory. Indeed, that is what the Tribunal said at [93] in its reasons. For that reason, although I was at first troubled by that sentence, I accept that the trouble was caused by infelicitous words or phrasing rather than jurisdictional error.
The difficulty with the last sentence of [96] appeared to be that it was connected to the balance of the paragraph, namely, there being a law of general application. If that was so, it would have been made on the basis of a misconstruction of or misunderstanding of the Act, in particular, sub-s.36(2)(aa). There is no requirement for any particular reason for the harm that might be suffered referred to in that subsection. However, I accept the submission that that sentence too must be read in its context.
When it is read against the finding at [94] it can be seen that the Tribunal did not read into the requirement for significant harm, that there was any particular reason for the imposition of that harm and, for that reason, I accept that there is no jurisdictional error revealed in that sentence.
Conclusion
For those reasons, I find that there is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 12 November 2015
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