AEG16 v Minister for Immigration - [2018] FCCA 1514

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEG16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1514

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – whether the tribunal denied the applicant procedural fairness – whether the applicant had a well-founded fear of persecution – application dismissed.

Cases cited:
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612

Applicant:

AEG16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 147 of 2016

Judgment of:

Judge Mercuri

Hearing date:

13 February 2018

Date of last submission:

13 February 2018

Delivered at:

Melbourne

Delivered on:

27 June 2018

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the respondents:

Ms S Koya

Solicitors for the respondents:

DLA Piper

ORDERS

The applicant’s application for judicial review filed on 28 January 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 147 of 2016

AEG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed in this court on 28 January 2016 under the Migration Act 1958 (Cth) (“the Act”) in which the applicant seeks relief in the form of constitutional writs against the decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on 7 January 2016. In its decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) made on 24 January 2014 refusing to grant the applicant a protection (class XA) visa (“the visa”).
The tribunal’s decision is found in the Court Book at pages 187 to 201.

Summary

For the reasons that follow, this application for judicial review fails.
I make orders dismissing these proceedings and order the applicant to pay the Minister’s costs.

The applicant’s claims

The following summary is drawn from the Minister’s outline of submissions. They are not controversial.
The applicant appeared in person at the hearing of this application for review before this court and was assisted by a Tamil interpreter at the hearing.
The applicant who claimed to be a citizen of Sri Lanka, initially applied for the visa on 21 December 2012.[1] The applicant’s statutory declaration set out his initial claims for protection.[2] In summary, these claims are as follows:
[1] Court book at pages 2 to 17.
[2] Court book at pages 49 to 54.
a)
he was displaced in 1992 from Illavalla during the conflict between the Liberation Tigers of Tamil Eelam (“LTTE”) and the

Sri Lankan government;
b)the applicant’s father was taken away by the Sri Lankan Army (“SLA”) in 1992, released at the end of 1992 and again detained by the SLA in 1995 for 3 months, during which time he was beaten and tortured;
c)in 2005, the applicant moved to Kilinochchi where the LTTE hosted meetings for people and organised aid for tsunami affected victims. He assisted in organising these meetings;
d)from 2007 to 2008, the applicant was part of the village council and had responsibility to assist with the civilian aspects of the LTTE. He also helped with general electrical and engine repair work for LTTE vehicles. He was not involved in fighting for the LTTE and acted as a civilian consultant;
e)in 2008, the applicant helped construct bunkers for the LTTE, along with other villagers. In 2009, he was displaced;
f)the applicant was subsequently asked to join the LTTE and fight but he refused. He was captured in an LTTE bunker and taken to an army camp where he was beaten, questioned and released. He was questioned by the SLA as he did not have a family record. The applicant was regularly questioned following his release as he had been marked as an active member of the LTTE;
g)In 2010, after moving to Kallari, the applicant was labelled an LTTE supporter. He was often interrogated and denied access to the sea. He was asked to report to an army camp in 2010, where he was questioned about his involvement with the LTTE and then released;
h)in 2010, the applicant was granted permission to fish. He was stopped at checkpoints when he went fishing. On occasion, he was beaten for being an assistant to the LTTE. The SLA threatened to shoot him if he questioned them. On two occasions, a gun was pointed at him and he feared for his life;
i)in 2011, the applicant was regularly questioned by the SLA and asked to identify people in the LTTE;
j)
in 2011, there was an incident where the applicant chased

grease-men from his home to an SLA camp. After this event, the SLA frequently enquired about him;
k)in May 2012, the applicant witnessed a soldier harassing a Tamil woman so he reported the incident to a high-ranking officer, who then slapped the soldier across the face. After this incident, the applicant was followed by the soldiers on the way to his work; and
l)on 10 June 2012, a motor vehicle came to the applicant’s house containing an army officer and four soldiers. The applicant was questioned about his involvement with the LTTE for approximately one hour and was threatened by the soldiers. The applicant believes this occurred because of his complaint about the soldier and experience in chasing the grease-men to the SLA camp.
The applicant’s application for the visa was refused by a delegate of the first respondent on 24 January 2014.[3]
[3] Court book at pages 86 to 104.
The applicant then applied to the (then) Refugee Review Tribunal for a review of the delegate’s decision on 31 January 2014.[4]
[4] Court book at pages 105 to 134.
On 11 February 2014, the applicant provided submissions to the tribunal in support of his claims.[5] In summary, those further submissions provided that:
a)the applicant had been threatened with forced disappearance, torture and death at the hands of the paramilitary and Sinhalese groups, acting in concert with the Sri Lankan military;
b)the applicant had been denied a livelihood by the Sri Lankan military as he was threatened at checkpoints which prevented him from working as a fisherman;
c)the applicant had been outspoken against the harassment of Tamil women by Army soldiers and has pursued ‘grease-men’ into army areas. He had been followed by soldiers and identified as a supporter of the LTTE through questioning by senior Sri Lankan Army officers and that these factors, combined with his Tamil ethnicity placed him at increased risk of serious harm if he was returned to Sri Lanka and identified as a returned failed asylum seeker who departed Sri Lanka illegally; and
d)the applicant fears persecution due to his Tamil ethnicity. The applicant claimed to have suffered a long and ongoing history of persecution at the hands of Sinhalese and Sri Lankan military and paramilitary groups and that this was due to his Tamil ethnicity. In addition, he stated that he was unable to seek government or police or judicial protection from his abusers as a result of his Tamil ethnicity.
[5] Court book at pages 147 to 154.
On 7 January 2016, the tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.[6]
[6] Court book at pages 187 to 201.

The tribunal’s reasons

The following summary of the tribunal’s decision, which is also not controversial, is taken from the Minister’s outline of written submissions.
The tribunal accepted the applicant’s claims regarding his previous involvement with the LTTE and occasions during which he was questioned by the SLA in 2009 about perceived links to the LTTE but did not accept that this gave rise to a real chance of serious harm.[7]
[7] Court book at page 190 at paragraph [18].
The tribunal accepted the applicant’s claims about being questioned and threatened by the Army in 2011, and of making a complaint about a soldier he saw harassing a Tamil woman, but did not accept that he was beaten during this period.[8] Moreover, the tribunal did not accept that the applicant faced a real chance of serious harm due to these events.[9] The tribunal concluded that while the applicant may have been suspected of having LTTE links, he was not considered by the authorities to have had more elaborate links with the LTTE, and therefore there was little chance that he would be harmed upon return to Sri Lanka following the events of 2009 to 2012.[10]
[8] Court book at pages 190 to 191 at paragraph [19].
[9] Court book at page 191 at paragraphs [20] to [21].
[10] Court book at page 191 at paragraph [22].
The tribunal accepted that in 2011, the applicant and others from his village may have chased a man whom they suspected was causing trouble in the area into an Army camp and that the applicant was warned by an Army person shortly after not to go to the Army area. However, the tribunal found that the applicant did not face a real risk of serious harm from the Army or anyone else if he returned to Sri Lanka in the foreseeable future on the basis of this incident.[11]
[11] Court book at page 193 at paragraph [28].
The tribunal accepted the applicant’s claims that he was unable to obtain a fishing pass in the period after he was released from the IDP camp following the war until a couple of months after he returned to the Mullaitivu district in mid-2011.[12] However, on the applicant’s own evidence at hearing, the tribunal found that he was eventually given a pass and was able to fish and earn a livelihood right up until his departure from Sri Lanka in August 2012.[13]
[12] Court book at page 193 at paragraph [32].
[13] Court book at pages 193 to 194 at paragraphs [29] to [33].
The tribunal accepted that during this time, the applicant was required to show the pass and other identity documents at a number of military checkpoints to and from work each day and on some occasions he was punished for forgetting his pass and then made to kneel down for approximately an hour. However, the tribunal found that this did not constitute serious harm.[14] Ultimately, the tribunal did not accept that the applicant would be deprived of a livelihood by the military upon a return to Sri Lanka.[15]
[14] Court book at pages 193 to 194 at paragraph [32].
[15] Court book at pages 193 to 194 at paragraph [32].
The tribunal further determined that the applicant did not have a well-founded fear of persecution from the authorities, including the security forces, the paramilitaries or the Sinhalese majority for reasons of his imputed political opinion for any of the reasons claimed either separately or in combination.[16]
[16] Court book at page 194 at paragraph [33].
The tribunal accepted on the basis of the evidence before it that persons with a Tamil ethnicity in Sri Lanka faced a degree of harassment, discrimination and, in some cases, persecution during the time of conflict between the LTTE and the Sri Lankan authorities on account of their ethnicity. However, in light of the end of the war in May 2009 and relevant country information, the tribunal found that the applicant did not face a real chance of serious harm solely on account of his Tamil ethnicity or imputed political opinion, either from the Sinhalese majority or the Sri Lankan authorities. The tribunal concluded that the applicant’s fear of persecution in this respect was not well-founded.[17]
[17] Court book at page 195 at paragraph [41].
The tribunal acknowledged that upon return to Sri Lanka, the applicant was likely to face questioning at the airport as to his activities during the time he had been abroad and given his Tamil ethnicity, may also face questioning about any links he may have with the LTTE.[18] The tribunal concluded that this line of questioning would quickly establish that the applicant did not have elaborate links with the LTTE.[19]
[18] Court book at page 196 at paragraphs [42] to [46].
[19] Court book at page 196 at paragraph [46].
The tribunal accepted that the applicant departed Sri Lanka illegally and would likely be charged under the Immigrants and Emigrants Act.[20] The tribunal found however, that the applicant would be granted bail immediately, that his family could act as guarantor with respect to his bail and that he or his family could pay the fine.[21] The tribunal did not accept that there was a real chance that the applicant would suffer serious harm while he was questioned or during any time spent on remand awaiting a bail hearing.[22] The tribunal further found that any questioning, charge, conviction or penalty, including any brief period which the applicant may have to spend in jail and any fine he may incur, was the result of a law of general application which applied to all Sri Lankan citizens and accordingly did not amount to persecution.[23]
[20] Court book at page 197 at paragraph [48].
[21] Court book at page 197 at paragraph [49].
[22] Court book at page 198 at paragraphs [52] to [53].
[23] Court book at pages 197 to 198 at paragraph [51].
The tribunal did not accept that there was a real risk that the applicant would suffer significant harm as that term is defined, while being questioned or during any period held in remand.[24]
[24] Court book at page 199 at paragraph [60].

Legislative framework

The tribunal’s decision, as the subject of this review, is one to which section 474 of the Act operates. Section 474 limits the judicial review to questions of jurisdictional error. As noted by their Honours Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] (footnotes excluded):
Once it is accepted, as it must be, that s474 is to be construed conformably with Ch III of the Constitution, specifically, s75, the expression “decision[s]… made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction not an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision … made under this Act” and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act.
The issue therefore is whether the tribunal’s decision is infected by jurisdictional error.

Ground one

The first ground of review in the applicant’s application reads:
The decision of the Tribunal:
(a)Is affected by an error of law; and
(b)Denied the applicant procedural fairness.[25]
[25] Applicant’s application filed 28 January 2016.
No particulars were provided in relation to this ground.
Orders were made by Registrar Buljan on 22 June 2016 permitting the applicant to file and serve any amended application including any additional grounds of review with complete particulars of each ground, any affidavits and any written submissions and/or lists of authorities no later than 28 days prior to the final hearing. Notwithstanding these orders, the applicant did not file any further material nor did he provide any further particulars of his claim.
At the hearing, the applicant confirmed that he had a copy of the

Court Book and the first respondent’s written submissions. He initially indicated that he wished to hand up a further letter although it was ultimately determined that this letter was already included in the

Court Book at page 177.
The applicant was invited to speak to his claim at the hearing and he made the following submissions:
a)he was initially assigned a lawyer but:
The lawyer didn’t put my case properly. He didn’t even read my statement back to me… The lawyer didn’t appear to (sic) the interview. The lawyer only appeared over the phone. The lawyer didn’t prepare me what to say, how to say and how my case is going to be. He didn’t help me. When they gave me the rejection, they didn’t give any reason.
… If I go back to my country, my life will be in danger.
… They didn’t took (sic) into consideration the documents I filed, and they didn’t give any reason for the application. I have filed some documents. For an example, I gave visa documents, but they didn’t criticise anything about the document. They didn’t mention they have read or understood these documents, they just rejected my application. They didn’t given me any reason, and they didn’t explain me (sic) why they reject it. From a previous lawyer, I need to submit or give a lot of information. Those informations (sic) were not being provided. So I want to ask you, can I get another opportunity to give all my information again?[26]
b)the applicant said that he was a president in a village and that if he is returned to his country, he would be arrested and kept under the ‘Prevention of Terrorism Act’, that he would be questioned and beaten and put in jail and he is not confident that he would survive.[27]
[26] Transcript page 3 at line 46 to page 4 at line 20.
[27] Transcript page 4 at lines 25 to 30.
In response to a question from the bench as to what he meant by the first aspect of ground one of review in his application, namely that the tribunal’s decision is affected by an error of law, the applicant said:
What I mean is my case was not decided according to the definition of UN Convention. Actually they didn’t consider the documents I submitted and they didn’t give me enough reason, so that’s wrong.’
In response to a question as to what he meant by the second ground, namely that he had been denied procedural fairness, the applicant said:
What I can tell is I can’t go back to my country. That’s the only thing I can tell because in my case they didn’t give that. If I go back to my country, definitely I will get killed, therefore I request the honourable judge to allow my case to be heard again.[28]
[28] Transcript page 5 at lines 19 to 22.
In response to the matters raised by the applicant at the hearing, and in addition to the written submissions filed for the first respondent, counsel for the Minister made the following submissions:
a)in response to the suggestion that the applicant was unaware of the contents of his statement, it is clear that the statutory declaration filed on behalf of the applicant was translated to the applicant and that he appeared to understand its contents;[29]
b)
in response to the applicant’s comment that the tribunal did not consider the documents which he submitted, counsel pointed to the tribunal’s consideration of the letter provided by the applicant that he had been a village member and further the applicant’s evidence that he was a village president.[30] Moreover, the tribunal acknowledged that the applicant was a village leader in

Sri Lanka[31] and resumed his leadership role when he returned to his village in 2011 and ‘in that capacity came to the adverse attention of the army at times’;[32] and
c)to the extent that the applicant claimed that the tribunal did not provide reasons, counsel referred to the tribunal’s reasons set out in the Court Book.[33] I accept counsel’s submissions that the reasons provided were comprehensive.
[29] Court book at page 54.
[30] Court book at pages 188 and 189.
[31] Court book at page 190 at paragraph [18].
[32] Court book at page 190 at paragraph [19].
[33] Court book at pages 188 to 200.

In addition, counsel for the Minister identified the applicant’s claims as contained in his statutory declaration.[34] In essence, these claims relayed a fear of persecution on the basis of his imputed political opinion, that he was refused a fishing licence, his Tamil ethnicity and that he feared the grease-men.
[34] Court book at page 49.
Moreover, notwithstanding the applicant’s complaints at the hearing about the level and quality of his representation, his legal representatives filed written submissions on 14 December 2012.[35]. It appears from the delegate’s decision record that the applicant also attended an interview on 28 October 2013.
[35] Court book at pages 63 to 72.
After considering each of the applicant’s claims, they were rejected by the delegate. The applicant was advised of the delegate’s decision by letter dated 24 January 2014. The applicant subsequently sought a review of that decision.[36] In addition, the applicant, who was legally represented throughout the process, provided further information and submissions to the tribunal under cover of a letter dated 11 February 2014.[37]
[36] Court book at pages 105 to 114.
[37] Court book at pages 147 to 154.
The applicant was invited to and did attend a hearing before the tribunal. This was initially scheduled for 27 October 2015 but was adjourned to 1 December 2015. The applicant attended the hearing together with a Tamil interpreter and his representative attended by telephone. The applicant provided further information to the tribunal during the hearing.[38]
[38] Court book at pages 177 to 182.
The tribunal considered each of the applicant’s claims but ultimately did not accept that they met the requirements of the Act warranting the issue of a protection visa. In particular, the tribunal considered the applicant’s claim on the basis of his imputed political opinion.[39] Whilst the tribunal accepted that the applicant was a village leader and had prior involvement with the LTTE, his role was considered largely that of a non-combatant.
[39] Court book at pages 190 to 191 at paragraphs [18], [19], [20] and [22].
The tribunal also accepted the applicant had been interned in an IDP camp in 2009 and that he was questioned and on one occasion physically hit. However, the tribunal concluded that this was in the context of the war and immediate post-war period and that the political climate had significantly changed since then.[40]
[40] Court book at page 191 at paragraph [21].
The tribunal also accepted that upon returning to his village, the applicant resumed his leadership role and came to the attention of the Army at times where he was questioned about his links to the LTTE. However, the tribunal did not accept that the applicant had been placed on a watch list or that he was physically assaulted. The tribunal concluded that notwithstanding the above, there was a ‘remote’ chance that the applicant would be seriously harmed upon return to Sri Lanka by the authorities on the basis of an imputed political opinion.[41] Importantly, the tribunal made express reference to its regard for ‘a letter the applicant provided… dated 18 November 2015…’ about his links to the LTTE and the danger the applicant would face on his return.[42]
[41] Court book at page 192 at paragraph [24].
[42] Court book at page 192 at paragraph [23].
The tribunal considered the applicant’s claims in relation to the ‘grease-men’ incident and acknowledged that ‘the applicant and others from his village may have chased a man whom they suspected was causing trouble in their area and surrounds into an army camp…’[43] However, the tribunal found that the applicant would not face a real chance of serious harm if he returned to Sri Lanka on the basis of this incident. The tribunal also noted that this incident occurred four years ago.[44]
[43] Court book at page 193 at paragraph [28].
[44] Court book at pages 192 to 193 at paragraphs [26] to [28].
The tribunal also considered the applicant’s claim that he had been deprived of land and livelihood.[45] Whilst the tribunal accepted that the applicant was unable to obtain a fishing pass in the period after he was released from the IDP camp and that this may have been because he was from an area previously controlled by the LTTE, the applicant himself conceded that he was ultimately granted a pass and was able to fish and earn a living right up until he left the country. The tribunal did not accept that this claim gave rise to a well-founded fear of persecution on a convention ground.[46]
[45] Court book at pages 193 to 194 at paragraphs [29] to [33].
[46] Court book at page 194 at paragraph [33].
The tribunal then considered the applicant’s claims relating to his Tamil ethnicity and, in doing so, made reference to the written submissions filed on his behalf. However, the Tribunal did not accept that simply being a Tamil or a young male Tamil from the north gave rise to a well-founded fear of persecution from the authorities in Sri Lanka. Having regard to the country information available, the tribunal found that the applicant’s fear of persecution on this ground was not well-founded.[47]
[47] Court book at page 195 at paragraph [41].
The tribunal accepted that upon his return, the applicant would likely face questioning at the airport and that this may include questioning about any links to LTTE. However, the tribunal was satisfied that any such questioning would ‘quickly establish that the applicant did not have elaborate links with the LTTE.’[48]
[48] Court book at page 196 at paragraph [46].
In relation to the applicant’s fears arising from the fact that he had left the country illegally, the tribunal accepted that as he departed Sri Lanka illegally, he was likely to be questioned and charged on his return under the Immigrants and Emigrants Act; however, the tribunal was not satisfied that he would be particularly targeted as an LTTE suspect of particular concern.[49] Moreover, the tribunal noted that the Immigrants and Emigrants Act applies to all Sri Lankans and was satisfied that this legislation did not have a discriminatory intent or impact.
[49] Court book at page 197 at paragraph [48].
In addition to considering each of the applicant’s claims individually, the tribunal also considered them cumulatively and concluded that the applicant was not a person in respect of whom Australia had protection obligations and therefore the applicant did not satisfy the criterion set out in section 36(2)(a) of the Act.[50]
[50] Court book at page 200 at paragraph [62].
The tribunal then considered the applicant’s claims based on the complementary protection assessment and also concluded on the basis of earlier findings, that there was no real risk that the applicant would suffer significant harm for any reason.[51]
[51] Court book at page 199 at paragraphs [57] to [61].
Having considered the submissions on behalf of both parties and having reviewed the tribunal’s decision and the Court Book, I find that ground one has not been made out.
The applicant was afforded procedural fairness. He was represented throughout these proceedings, submissions were made on his behalf and he was provided with the opportunity to, and in fact did, provide other information in the form of letters and other documents. The tribunal expressly referred to those matters and in many respects accepted the applicant’s claims; however, was not satisfied that the applicant had a well-founded fear of persecution on a convention ground.
This application is seeking, in effect, a merits review of the tribunal’s decision which is impermissible.
Ground one is therefore not made out.

Ground two

The second ground of review in the applicant’s application is:
I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.[52]
[52] Applicant’s application filed 28 January 2016.
As stated above, notwithstanding the orders made by Registrar Buljan, the applicant did not file any further material nor did he provide any further particulars in relation to this ground.
This ground does not identify any jurisdictional error on the part of the tribunal. To the extent that the applicant expanded upon his grounds of review at the hearing, these have been addressed in relation to ground one. As noted by his Honour Gilmour J in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, ‘failure to particularise a ground of review is sufficient basis for it to be dismissed’.[53]
[53] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. See also WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
It follows that the applicant’s second ground for review does not disclose or particularise any jurisdictional error and must be dismissed.

Conclusion

As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 27 June 2018