AHF15 v Minister for Immigration

[2016] FCCA 3234

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHF15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3234

Catchwords:
MIGRATION – Protection visa – Sri Lankan national – no factual basis given for the grounds of review claimed – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Applicant: AHF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 614 of 2015

Judgment of: Judge Wilson

Hearing date: 15 November 2016

Date of Last Submission: 15 November 2016

Delivered at: Melbourne

Delivered on: 15 November 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the first respondent: Mr Ned Rogers of Australian Government Solicitor

ORDERS

1. The application filed 26 March 2015 is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $5,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 614 of 2015

AHF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

1. By initiating application filed in this Court on 26 March 2015 the applicant sought judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made 27 February 2015[1] pursuant to which the Tribunal affirmed a decision of the delegate of the Minister made 5 July 2013 not to grant the applicant a Protection (Class XA) visa (“the visa”).[2]

   [1] Court Book filed 30 November 2015 at pp.151-166.

   [2] Court Book filed 30 November 2015 at pp.99-112.

2. The applicant asserted that the Tribunal’s decision was affected by error of law and that the applicant was denied procedural fairness. He asserted that he applied for legal aid and was awaiting a decision on his application for the grant of aid.[3]

   [3] Application filed 26 March 2015 at p.3.

3. Registrar Allaway made orders on 8 July 2015 requiring the applicant to file written submissions together with any amended application by 11 October 2016. The applicant did neither. Beyond exhibiting the Tribunal’s reasons,[4] the applicant did not file any affidavit material bearing in any way upon his second ground of review, that is to say, his alleged application for legal aid and how he was waiting for a decision on the grant of legal aid.

   [4] Affidavit sworn by the applicant on 25 March 2015.

Synopsis

1. For the reasons that follow, in my view none of the grounds of review have been made out. I dismiss this proceeding and order the applicant to pay the Minister’s costs. Let me explain why.

Short factual history

1. The applicant, a Sri Lankan national of Tamil ethnicity, applied for the visa on 7 November 2012.[5] He claimed to fear harm on the grounds recorded in a statutory declaration accompanying his visa application.[6] In essence, he contended that he was stopped by the army on

   
   

   12 January 2012 when he was threatened at gunpoint and robbed after which incident he encountered difficulties with the army, so he said.

   [5] Court Book filed 30 November 2015 at pp.39-49.

   [6] Court Book filed 30 November 2015 at pp.65-67.

2. The applicant also stated in the statutory declaration that accompanied his visa application that in 2011, prior to the 12 January 2012 incident, that at a local temple the applicant’s mother helped a person who was soaked in blood, providing the man with clothes and money, following which incident the army and paramilitary persons accused the applicant of aiding an escapee.

3. At an interview in support of his visa application, the applicant claimed that the army had visited his house a number of times looking for him since his departure from Sri Lanka.[7]

   [7] Court Book filed 30 November 2016, p.102 at [8]

4. The applicant further claimed –

   a)the human rights situation in Sri Lanka remained perilous;

   b)Tamils in Sri Lanka face a real chance of harm by reason of their race;

   c)the applicant will be seen in Sri Lanka as being a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) because the applicant’s family assisted Tamils to escape from an army camp; and

   d)the applicant will be at risk of harm as a failed asylum seeker and a person who unlawfully departed from Sri Lanka.[8]

   [8] Submissions of first respondent filed 31 October 2016, p.2 at [9].

5. On 17 February 2015, the applicant gave evidence to the Tribunal.

6. The Tribunal’s reasons reflected a careful examination of the applicant’s claim. Those reasons reveal that the Tribunal carefully and properly assessed the Convention-based ground of protection that the applicant claimed along with the complementary protection basis of the applicant’s claim. Let me highlight some of the more important matters that the Tribunal took into account –

   a)first, the Tribunal accepted that the applicant was a Tamil and Hindu whose family had been dispossessed during the civil war. The Tribunal also accepted that the applicant and other villagers were subjected to high level monitoring by the army from time to time;

   b)second, the Tribunal considered that the risk of a recurrence of the incident on 12 January 2012 was remote in view of the improving situation in Sri Lanka; and

   c)third, the Tribunal addressed the applicant’s claim that the army was looking for him. The Tribunal did not accept that the army and paramilitary people visited the applicant’s home subsequent to any assistance he may have given to an escapee from the army camp. Nor did the Tribunal accept that the army suspected the applicant of being sentimentally favourable to the LTTE. The Tribunal did not accept that the army would impute to the applicant any connection to the LTTE.

7. The Tribunal addressed relevant country information and concluded that the applicant’s circumstances were not such as would lead to the real chance of his being harmed by reason of any perceived links to

   
   

   the LTTE. In addition, the Tribunal took into account the fact that the civil war in Sri Lanka ended in 2009 since which date there had been and continues to be a marked improvement to the situation there.

8. The Tribunal concluded it was not satisfied that the applicant faced a real chance of harm as a returnee or as a failed asylum seeker.

9. The Tribunal considered, but rejected, the applicant’s assertion of the risk of harm on account of his illegal departure. It found that even if convicted for unlawful departure, the fine was likely to be between AUD$40.00 and AUD$400.00, which did not result in a real or serious chance of significant harm.

10. In the upshot, the Tribunal rejected the applicant’s claims and it affirmed the delegate’s decision.

In this Court

1. The first two grounds of review agitated a single contention of jurisdictional error warranting judicial review. I do not agree. The Tribunal’s reasoning was sound. The Tribunal fairly canvassed the applicant’s claims under ss.36(2)(a) and 36(2)(aa) of the

   
   Migration Act 1958

   (Cth).

2. The applicant did not identify what the so-called error of law was that he asserted in ground 1(a) of his review grounds. I was unable to detect any. Nor did the applicant articulate the way he said he was allegedly denied procedural fairness. He had the assistance of an interpreter during the Tribunal hearing. In my view, no error of law was demonstrated in the Tribunal’s reasons. Nor was any basis given to indicate that the applicant was not accorded procedural fairness. In my view, nothing irregular emerged from the conduct of the proceeding before the Tribunal or in its reasons.

3. Ground 1 of the review grounds failed.

4. Ground 2 of the review grounds was bereft of detail. No affidavit material was filed to indicate whether the applicant complained that he did not have the benefit of legal aid for the Tribunal hearing or afterwards. If it was the former, he was not in any way disadvantaged by the absence of legal aid at the Tribunal hearing. If the applicant was complaining about the fact that no decision had been made about his application to this Court, then –

   a)he filed no material to set out the precise way he said he was disadvantaged, if at all; and

   b)it may well be that a decision had, in fact, been made since the date of his initiating application to this Court, but the decision was unfavourable to him.

5. In any event, no application for an adjournment was made, nor was any basis given to do otherwise than proceed to hear and determine this application.

6. In my view, ground 2 of the grounds of review failed.

7. Before me, through an interpreter the applicant submitted that his health is failing. He pleaded to remain in Australia. Such a plea does not amount to jurisdictional error, nor is it a basis for the grant of judicial review in this case. It is not appropriate, nor permissible for me to undertake a merits review of the decision of the Tribunal.

Conclusion

1. All grounds of review having failed, I dismiss this proceeding and order the applicant to pay the Minister’s costs in the amount of $5,200.00 which the solicitor for the Minister informed me was less than the scale amount.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 14 December 2016