AFW15 v Minister for Immigration

[2016] FCCA 681

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 681

Catchwords:
MIGRATION – Protection visa – review of Refugee Review Tribunal decision – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the Tribunal erred in applying the definition of degrading treatment to the applicant’s circumstances – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 476

Applicant: AFW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 759 of 2015

Judgment of: Judge Smith

Hearing date: 24 February 2016

Date of Last Submission: 24 February 2016

Delivered at: Sydney

Delivered on: 24 February 2016

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Ms N. Maddocks, DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The name of the second respondent be amended to Administrative Appeals Tribunal.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 759 of 2015

AFW15

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 25 July 2012. On 12 December 2012, he made an application for a protection visa. The basis of that claim was set out in a statement that accompanied that application. Essentially, the applicant claims that he was beaten and mistreated by members and supporters of the United People’s Freedom Alliance (“UPFA”) because he was an active supporter and, indeed, chief organiser of the United National Party (“UNP”). 

2. In his application, the applicant referred to a number of incidents alleged to have occurred in 2004, 2005, 2009, 2010 and 2011. He claimed that after the last incident, he stayed at his friend’s house and went home irregularly. He claimed that people came to his home on several occasions, looking for him, and that he would be harmed by those people if he were to return to Sri Lanka. He also claimed to have suffered barriers to practising religion, that he found both Buddhism and Christianity appealing and wanted to attend both churches.  However, he said each group did not want to accept him and were excluding him from that practice.

3. On 1 August 2013, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal[1] for review of the delegate’s decision. In a statement to the Tribunal, the applicant claimed, in addition to his previous claims, that because he left Sri Lanka illegally, he could face a prison sentence and would be tortured and mistreated. 

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

4. The applicant was invited to, and attended, a hearing on 17 December 2014. There is a transcript of that hearing before the Court. During the hearing, the Tribunal asked the applicant a number of questions about his claims and, in particular, about his claimed involvement in the election campaign process. As part of his response to these questions, the applicant told the Tribunal that he was a sportsman, including being a swimming champion, and that he was popular in his area. In written submissions dated 8 January 2015 prepared by the applicant’s agents, the applicant stated that he was well-known in Sri Lanka due to his achievements as an athlete at a national level, and he provided a number of documents in relation to that, including photographs and certificates.

The Tribunal’s decision

1. On 17 February 2015, the Tribunal made a decision to affirm the decision of the delegate. The Tribunal had considerable difficulties with the applicant’s credit and found that he was not a reliable witness with regards to his claimed involvement with the UNP and mistreatment by supporters of the UPFA. It considered a number of letters that the applicant had relied upon to establish his claims but found that none of the letters were genuine and had been fabricated by or for the applicant in order to strengthen his claims. 

2. For those reasons, the Tribunal did not accept that the applicant had ever been a campaign or rally organiser as claimed or that he had ever designed, wrote, created or produced any election‑related materials for the UNP or put up posters or distributed leaflets in an election campaign. It did not accept that he was ever mistreated or harmed in any way or threatened by members or supporters of the UPFA or any other political group in Sri Lanka and so did not accept that he had curtailed any of his activities because of past mistreatment and threats.

3. However, in spite of its concerns, the Tribunal gave the applicant the benefit of the doubt and accepted that he was a supporter of the UNP and that he had been a low‑level supporter of that party for about eight years. In making that finding, it accepted that the applicant was a successful sporting person and that he was a well‑liked and respected person in his community. However, it found that that did not affect its assessment of the claims to have been a high‑level and high‑profile UNP campaigner and supporter.

4. In respect of the claim concerning the practise of religion, the Tribunal noted that the applicant had made no mention of that or reference to it at the hearing and had not mentioned it since his interview with the delegate. In light of that and its conclusions about the applicant’s reliability as a witness, it did not accept the applicant’s claims to have been interested or involved with Catholicism or to have experienced any form of mistreatment or harm for that reason. 

5. The Tribunal then considered the likelihood that the applicant would be harmed on the basis of the facts that it had found.  It noted that it had carefully considered the information provided in written submissions by the applicant’s agent as well as the UNHCR’s most recent eligibility guidelines dated October 2012. It found on the basis of all that information, that while there was a chance that a low‑level supporter of the UNP could be subjected to harm such as threats, intimidation and assault. However, in the applicant’s particular circumstances, it found that such a chance was not a real chance.

6. In respect of the applicant’s claim to fear harm as a failed asylum seeker, the Tribunal accepted that on arrival at the airport in Colombo, he would be questioned by immigration authorities, the CID and potentially the SIS. It did not, however, accept that he was a person of any interest to those authorities or that there was a real chance that inquiries conducted by them would lead to him suffering any harm during the interview process at the airport. 

7. In respect of the applicant’s claim concerning his illegal departure from Sri Lanka, the Tribunal found that any potential prosecution or questioning would occur through the operation of a valid and legitimate law, which would not amount to persecution. In particular, it found that the law was not discriminatory in its terms and was not selectively enforced or applied by the government of Sri Lanka. It found that while he might spend up to four days in custody on remand and the conditions in those cells were well below international standards, such treatment and conditions would not amount to persecution for the purposes of the Migration Act 1958 (Cth). It also found that there was no real chance that he would be imprisoned or mistreated or suffer serious harm while in prison.

8. The Tribunal concluded that, even considered in combination, none of the applicant’s claims satisfied the definition of a refugee. For that reason, the applicant did not satisfy the criterion in sub-s.36(2)(a) of the Migration Act.

9. The Tribunal then turned to consider whether the applicant met the complementary protection criterion in sub-s.36(2)(aa). In particular, it focused upon what might occur to him upon arrival at the airport and during a brief period of detention on remand. Critically for present purposes, the Tribunal did not accept that being in a remand cell in the conditions it accepted were substandard would cause the applicant “in his particular circumstances and with his attributes” to suffer harm, whether physical or mental pain or suffering, which could constitute significant harm. Likewise, although it found that the applicant would be ordered to pay a fine of between 50,000 and 100,000 rupees, it considered that that would not amount to significant harm. For those reasons, the Tribunal concluded that the applicant did not meet the criterion in sub-s.36(2)(aa), and as there was no suggestion that the applicant was a member of the same family unit as a person who did meet the criteria for the visa, it affirmed the decision of the delegate.

Consideration

1. The applicant now seeks judicial review of the Tribunal’s decision in the exercise of the Court’s jurisdiction under s.476 of the Act. That requires that the applicant must establish that there is jurisdictional error in the Tribunal’s decision. Very broadly stated, that means that there must be some serious legal error affecting the decision.

2. The applicant relies upon an amended application.

Ground 1

1. The first ground is that the Tribunal erred in “making a finding an irrelevant consideration”. The critical particular to the ground is:

   The country information supported the applicant’s claim and alternately, the Tribunal failed to consider that being “well‑liked and respected person in his community” may make the applicant a target for harm.

2. Whether or not the country information supported the applicant’s claims does not affect the legality of the Tribunal’s decision. It is open to the Tribunal to reject a claim made by an applicant even though that claim might be supported by country information. What is important is whether the Tribunal’s decision was based upon findings or inferences of fact that were based upon logical grounds. Put another way, were the Tribunal’s findings open on the material? 

3. In this case, the critical findings of fact made by the Tribunal were based upon the applicant’s own evidence. It gave detailed reasons as to why it did not accept the applicant’s evidence. I cannot see that any of those reasons given by the Tribunal was not open in the sense that I have just described. Thus, even though some or all of the applicant’s claims might have been supported by other evidence, the Tribunal made no jurisdictional error in rejecting those claims. Further, once the Tribunal had made findings about the applicant in respect of his involvement in politics, it made an assessment based upon country information as to the risk that he might face on return to Sri Lanka.  There is nothing in the material before the Court to suggest that that assessment was not properly based upon the material referred to by the Tribunal, in particular at [92] of its reasons.

4. As to the claim that the Tribunal failed to consider that being a well‑liked and respected person in his community may make the applicant a target for harm, that is plainly not the case. The Tribunal referred to and accepted that the applicant was a successful, well‑liked and respected person in his community, and it directly and expressly took that into account in determining the future prospects of the applicant being harmed; see, for example, [92], [93] and [112] of the Tribunal’s reasons. For those reasons, the first ground is rejected.

Ground 2

1. The second ground is that the Tribunal erred in applying the definition of degrading treatment to the applicant’s particular circumstances.

2. In order to meet or satisfy the criteria of sub-s.36(2)(aa), the Minister must be satisfied that Australia has protection obligations because there are:

   ... substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.

3. Significant harm is defined in s.5 to mean that which is set out in s.36(2A). Amongst the matters referred to in that subsection is that the non‑citizen will be subjected to degrading treatment or punishment. Degrading treatment or punishment is, in turn, defined in s.5 to include:

   ... an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.

4. In that statutory context, this ground is focused upon the Tribunal’s consideration of the complementary protection criterion. As I have noted, when considering that issue, the Tribunal accepted that there was a real chance that the applicant would be interviewed and be held in remand for a number of days. However, it found that even though the prison conditions were overcrowded, dark, unclean and cramped, this would not cause him extreme humiliation. The question is whether, in making that finding, the Tribunal took into account the applicant’s characteristics of being a successful sportsman and well-liked and respected. In my view, it did. In particular, the Tribunal found at [112]:

   … The Tribunal does not accept that being in a remand cell in those conditions for that period would cause the applicant, in his particular circumstances and with his attributes, to suffer harm, whether physical or mental pain or suffering, which would constitute significant harm within the meaning of s.5(1) of the Act.

   (Emphasis added)

5. The particular circumstances and attributes referred to by the Tribunal are, in my opinion, a reference to all of those factors about the applicant that were accepted by the Tribunal, including being a well‑liked and respected Sinhalese athlete. That fact had been referred to on a number of occasions in the Tribunal’s reasons: see [86], [92] and [106] of the Tribunal’s reasons. For that reason, I reject ground 2 of the amended application. 

Arguments raised at hearing

1. At the hearing today, the applicant raised a number of arguments, most of which went to the factual findings made by the Tribunal which I have found were open on the material before it. He also argued that he had produced documents to prove that he was involved in the UNP but the Tribunal had not considered them. That is not correct. As I have noted, the Tribunal did consider those documents and rejected them as having been falsified.

Conclusion

1. The applicant has failed to establish jurisdictional error in the Tribunal’s decision, and the application must be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 31 March 2016