AFG15 v Minister for Immigration

[2016] FCCA 2202

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFG15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2202

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal considered the applicant’s detention upon return to Sri Lanka – whether the Tribunal failed to properly consider the applicant’s claims to complementary protection – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 424A

Cases cited:

SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64

SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69

Applicant: AFG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 707 of 2015

Judgment of: Judge Smith

Hearing date: 2 August 2016

Date of Last Submission: 2 August 2016

Delivered at: Sydney

Delivered on: 2 August 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms C Hillary, DLA Piper Australia.

ORDERS

1. The application be dismissed

2. The applicant pay the first respondent’s costs fixed in the amount of $5,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 707 of 2015

AFG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 23 July 2012. On 19 December 2012 he applied for a protection (Class XA) visa. The claims that the applicant made in support of that application were essentially that he had changed his political allegiance and that, as a result, he and his family were assaulted and that his wife was significantly harmed. Threats and other actions continued until the applicant fled Sri Lanka with his stepson in July 2012. In support of those claims, the applicant produced a number of documents to the Department, including a letter dated 22 September 2012 from an attorney who was said also to have taken part in the political process.

Background

1. On 6 January 2014, a delegate of the Minister decided not to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. The applicant attended a hearing conducted by the Tribunal on 3 February 2015 and, in addition to giving evidence in support of his claims and making submissions, he raised a new claim, namely that he had been falsely charged with dealing in heroin and had been imprisoned for one year and three months. The day following the hearing, the Tribunal wrote to the applicant purportedly pursuant to s.424A of the Migration Act 1958 (Cth), setting out certain information that it considered would be the reason for its decision on review. The information was statements that the applicant had made, essentially, that was inconsistent with later evidence given by him.

2. The applicant responded through his migration agent’s by letter dated 16 February 2015 and the Tribunal made its decision on 24 February 2015 affirming the decision of the delegate. The Tribunal rejected the applicant’s claims, particularly in relation to his membership of the new political party and the consequences of his alleged change of allegiance. The Tribunal gave a number of reasons for these conclusions:

   i)first, the applicant’s evidence in relation to his membership of the new party, his role in it and his reason for leaving the party was significantly inconsistent;

   ii)secondly, the evidence of the applicant about the election he claimed to have been involved with in 2011 was not consistent with independent country information;

   iii)thirdly, the applicant’s evidence in relation to his claimed assaults in Sri Lanka was, according to the Tribunal, so inconsistent as to be not credible;

   iv)fourthly, the applicant’s evidence in relation to the action taken by the police was neither consistent nor persuasive;

   v)fifthly, the applicant appeared to be fabricating claims at the hearing; and

   vi)sixthly, the applicant’s evidence about his claimed addresses was inconsistent.

3. The Tribunal also rejected the applicant’s claims concerning the heroin charges because of the lateness of the claim as well as the overall credibility concerns held by the Tribunal. The Tribunal then turned to consider the more general claims, specifically the claim that the applicant might face harm because of his illegal departure, as a failed asylum seeker and, generally speaking, as a Tamil.

4. In this last respect, the Tribunal noted the applicant was not, in fact, a Tamil but Sinhalese and that the claim apparently arising was a mistake on the part of the delegate. In respect of the applicant’s illegal departure, the Tribunal accepted that the applicant would be detained for questioning and security and character checks upon return to Sri Lanka and that he would be remanded and charged with an offence under the Immigrants & Emigrants Act. However, the Tribunal found that any period of detention would be short and that the applicant would be released upon bail. If convicted, the applicant, according to the Tribunal, would almost certainly be fined and the chance of him being given a custodial sentence was remote.

5. The Tribunal found that any fine that might be imposed upon the applicant would not amount to serious harm and that the detention, either during questioning or pending bail, would also not amount to persecution. That was principally because the detention would not be for any of the convention reasons, but rather, would be the result of the non-discriminatory application of a law that applied generally to the population of Sri Lanka. In connection with the return as a failed asylum seeker, the Tribunal was not satisfied that the applicant would attract any adverse attention for reason of any actual or imputed political opinion on that basis in light of the country information about returnees and the applicant’s particular circumstances and background.

6. For those reasons, the Tribunal was not satisfied that the applicant met the criteria in sub-s.36(2)(a) of the Act. The Tribunal then considered what is referred to as the complementary protection criterion. On the basis of the same factual conclusions that it had reached in respect of the earlier criterion, the Tribunal found that there was no real risk that the applicant would suffer significant harm because of any actual or imputed political opinion as a result of an association with a political party or in connection with his status as a returnee or a failed asylum seeker. In that connection, it specifically considered the question of the imposition of a fine and the detention of the applicant on remand in custody pending bail.

7. The Tribunal found that the applicant would not be subjected to significant harm during the process of return because, for amongst other reasons, there was no evidence that there was mistreatment of people in the applicant’s situation such as to amount to torture, arbitrary deprivation of life or intentional mistreatment as contemplated by s.36(2A) of the Act. For those reasons, the Tribunal found that the applicant did not satisfy the complementary protection criterion and so affirmed the decision of the delegate to refuse to grant the applicant a protection visa.

Consideration

1. In his application for judicial review of the Tribunal’s decision the applicant included one ground, namely that the Tribunal erred in law “by failing to consider in full the complementary protection obligations Australia owed” to him. The particular of the ground is that the Tribunal made a finding that the applicant would be held in “degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reasons but as inhumane”.

2. There is some tension between the particular and the ground of the application. The complementary protection criterion does not require that there be a particular reason for the significant harm that an applicant is at risk of. Nevertheless I understand the ground to raise an argument that the Tribunal erred in the way in which it dealt with the harm that might occur to the applicant as a result of his detention. In this respect the Tribunal did accept that conditions in which the applicant would be remanded were cramped and uncomfortable.

3. However, as I have noted above, it was not satisfied that they would amount to significant harm, amongst other reasons, because there was no evidence that they would be intentionally inflicted. An argument about this approach to claims arising from detention for illegal departure were dealt with in this court in the case of, amongst others, SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64. In essence, Judge Driver found that the Tribunal did not err in concluding that there had to be some intentional infliction of harm in order for the complementary protection criterion to be satisfied. An appeal from his Honour’s decision was upheld by the Full Court in SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69 (“SZTAL”).

4. I am informed by the Minister that an application has been lodged with the High Court for special leave to appeal from that decision. However, I do not consider it in the interests of the administration of justice to delay these proceedings in order to await the outcome of that application. Accordingly, applying the reasoning of the Full Court in SZTAL, there was no error in the way in which the Tribunal dealt with the applicant’s claims for complementary protection insofar as it related to any detention that he might suffer as a result of his illegal departure from Sri Lanka. For that reason, the ground in the application is rejected.

5. The applicant appeared unrepresented before me today and essentially argued that the factual claims that he had made in support of his protection visa application were true and that he did not understand how the Tribunal came to its conclusion whereby it rejected those claims. The difficulty with this argument is that unlike the Tribunal, this court does not have the power to determine whether or not the applicant has been truthful in his claims about what had occurred and what might occur in Sri Lanka. That was a matter for the Tribunal.

6. The Tribunal was required, as part of its duty to review the delegate’s decision, to consider whether it was satisfied that the applicant had satisfied the criteria for the grant of the visa. That involved the Tribunal in making findings of fact; firstly about what the applicant claimed had happened in the past and secondly, about the probability of what might occur to the applicant in the future. This court however, is  limited to determining whether or not there is jurisdictional error in the Tribunal’s decision.

7. For those reasons, regardless of whether or not the applicant is correct in what he says, he has not raised any arguable jurisdictional error and thus, no basis upon which the court can act to interfere with the Tribunal’s exercise of its legislative duty.

Conclusion

1. For that reason the application must be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     31 August 2016