AHQ16 v Minister for Immigration
[2017] FCCA 2291
•20 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHQ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2291 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka for various reasons – applicant’s claims disbelieved in part and other claims found not to be well-founded – whether the Tribunal erred in dealing with the applicant’s fear of abduction and round ups considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 425 |
| Cases cited: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 Minister for Immigration v SZGUR (2011) 241 CLR 594 MZYRD v Minister for Immigration [2012] FCA 830 |
| Applicant: | AHQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 295 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Counsel for the Respondents: | Mr N Swan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 11 February 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 295 of 2016
| AHQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 January 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a Sri Lankan national born in Trincomalee, Sri Lanka, and is of Tamil ethnicity.[1] On 30 April 2012, he arrived in Australia as an irregular maritime arrival and, on 13 August 2012, applied for the visa.[2]
[1] Court Book (CB) 33
[2] CB 2-54; 129
In support of his visa application, the applicant raised the following matters:
a)he is of Tamil ethnicity;[3]
b)he fled to India in 2006 due to troubles with Sinhalese and Buddhist mobs. He had been beaten up three times;[4]
c)he returned to Sri Lanka in 2007. In October 2007, one week after he had returned, a group of 15 people who had returned from overseas, including the applicant, were rounded up by the Navy and Army. The applicant was hit and threatened. However, due to public uproar they were not taken away;[5]
d)subsequently, the Navy and Army conducted round-ups by going door-to-door. His cousin was taken and has not been heard from since. The Navy came for the applicant five times but he evaded them;[6]
e)in March 2008, the round-ups became less common. By that time, he was working in a petrol station and faced abuse and harassment from Sinhalese people;[7]
f)in 2012, there were kidnappings, using white vans, by the EPDP[8] and Karuna Group with the help of the Sri Lankan Army. The applicant feared that it would happen to him;[9]
g)he fled Sri Lanka in April 2012 because he was fearful of more round-ups being conducted by the Army, Navy and Sri Lankan Task Force. After the round-ups had commenced, his mother made arrangements for him to leave Sri Lanka;[10]
h)shortly before the Tribunal hearing, people had been visiting his family home in Sri Lanka looking for him;[11] and
i)he fears for his life if he has to return to Sri Lanka because he will be targeted by the Navy and Army on suspicion of having LTTE links, and also because of the 2012 kidnappings and round-ups.[12]
[3] CB 33
[4] CB 33
[5] CB 34
[6] CB 34
[7] CB 34-35
[8] Eelam People’s Democratic Party
[9] CB 33
[10] CB 33
[11] CB 296 [15]
[12] CB 35; 129
The applicant claimed to fear harm on account of:[13]
a)his Tamil race;
b)his membership of a particular social group, namely Sri Lankan Tamils and Tamils from the North West of Sri Lanka;
c)his real and imputed political opinion arising from his race and residence in a predominantly Tamil region; and
d)being a failed asylum seeker.
[13] CB 129
On 12 October 2012, the delegate refused to grant the applicant the protection visa.[14]
[14] CB 140-166
On 19 November 2012, the applicant applied to the former Refugee Review Tribunal (RRT) for review of the delegate’s decision.[15] He appeared before it on 28 March 2013.[16] On 29 May 2013, the RRT affirmed the decision under review.[17] On 24 February 2015, the Federal Court set aside the RRT decision.[18] On 27 August 2015, the applicant attended a further hearing before a differently constituted Tribunal.[19] On 19 January 2016, the Tribunal again affirmed the delegate’s decision.[20]
[15] CB 168-173
[16] CB 182-183
[17] CB 222-240
[18] CB 242-243
[19] CB 282-283
[20] CB 291-311
The Tribunal’s decision
The Tribunal had concerns about the applicant’s credibility and the reliability of his evidence regarding recent events (ie. those said to have occurred in and after 2012). It concluded that he was not a witness of truth and had not told the truth about those events.[21] The Tribunal did find that his oral evidence was “generally consistent” with the information he provided in his written statement and also to the Minister’s Department, in relation to his family background, travel, education and employment history in Sri Lanka.[22]
[21] CB 297 [18]
[22] CB 297 [18]
The Tribunal accepted the applicant’s claims that he had fled to India in 2006 and then returned in 2007, that he was caught in a round-up in October 2007 and was one of 15 people separated from the crowd in order to be taken away, and that his cousin had been abducted and not heard from since. It further accepted that the applicant experienced difficulties with Sinhalese customers and had to quit his job in 2009.[23]
[23] CB 297 [20]
The Tribunal was not satisfied that the alleged round-ups and white van abductions occurred in 2012 as the applicant claimed, or that he fled Sri Lanka for that reason.[24] In reaching that conclusion, the Tribunal relied on inconsistencies in the applicant’s evidence[25] and the lack of any country information supporting his claims.[26] It was not satisfied that there was a real chance that he would be abducted or caught in a round-up if he returned to Sri Lanka.[27] The Tribunal also did not accept that the applicant had been truthful about his claim to have lived in hiding before leaving Sri Lanka.[28] The Tribunal further concluded that a letter, written by Mr S[29] and given to the Tribunal by the applicant, was not true or reliable, because of numerous discrepancies between matters stated in the letter and the applicant’s oral evidence.[30]
[24] CB 300 [33]; 303 [48]
[25] CB 298 [24]-[27]
[26] CB 299-300 [30]-[32]
[27] CB 303 [48]
[28] CB 299 [29]
[29] The name has been anonymised
[30] CB 300-302 [34]-[43]
The Tribunal accepted that the applicant’s uncle was involved in the LTTE but did not accept that the applicant or any other relatives were so involved. It did not accept that the applicant was involved in the political activities of the Tamil people or was perceived as a Tamil political activist.[31] It also did not accept, among other things, that the applicant was, in 2012 or later, of adverse interest to, the government, security forces, Army or Navy, EPDP or Karuna Group, or that he was suspected of having LTTE links, or that he faced a real chance of harm on account of a suspicion of such links.[32]
[31] CB 302 [44]
[32] CB 303 [46]-[47]
The Tribunal did not accept that there was a real chance of harm arising from the applicant’s race, his former residence in a LTTE controlled area, or any imputed political opinion arising from these matters.[33] It did accept that the applicant departed Sri Lanka illegally[34] and that there was a real chance that he would be arrested for this and may be held in prison for a number of days to await a bail hearing.[35] It was not satisfied that returnees were subjected to mistreatment while in custody or on remand.[36] It accepted that conditions in prison were poor, but found that those conditions applied generally to all prisoners, and did not arise because of a Convention reason.[37] The Tribunal was not satisfied that there was a real chance that the applicant would suffer harm because of his illegal departure from Sri Lanka or for being a failed asylum seeker.[38]
[33] CB 303-305 [49]-[58]
[34] CB 305 [60]
[35] CB 306 [62]
[36] CB 306 [65]
[37] CB 307 [66]
[38] CB 307 [68]; [70]
The Tribunal was consequently not satisfied that the applicant was owed protection obligations pursuant to s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act). In relation to complementary protection, the Tribunal referred to and relied on its earlier findings.[39] Further, the Tribunal did not accept that either the brief period of time in which the applicant might be held on remand, or the imposition of a fine, amounted to significant harm.[40] The Tribunal was thus also not satisfied that the applicant satisfied s.36(2)(aa) of the Migration Act.
[39] CB 308 [75]
[40] CB 308 [76]
The current proceedings
These proceedings began with a show cause application filed on 11 February 2016. The applicant continues to rely upon that application. However, Grounds 1 and 2 have been abandoned in the light of the recent High Court decision in SZTAL v Minister for Immigration.[41]
[41] [2017] HCA 34
The remaining grounds are:
Ground 3
The Tribunal committed jurisdictional error when it failed to deal with accepted facts and whether these enhanced the risk to the Applicant.
Particulars
(a) The Tribunal accepted that uncle who was LTTE member was killed in 2006;
(b) The Tribunal accepted that the Applicant was missing.
(c) The Tribunal accepted that the Applicant was subject to round up.
(d) The Tribunal failed to deal with the cumulative effects of these.
(e) The Tribunal committed jurisdictional error.
Ground 4
The Tribunal committed jurisdictional error when it found that by virtue of the Applicant's previous departure the Applicant would not be of interest to the wide range of authorities and paramilitaries who would harm the Applicant. The finding is irrational and / or illogical
Particulars
(a) All the groups who might harm that Applicant may not have access to all the details of the Applicant.
(b) The Tribunal's finding that as the Applicant has been able to pass through the airports he was not of interest to any of the authorities is illogical / irrational.
(c) The Tribunal committed jurisdictional error.
I have before me as evidence the book of relevant documents filed on 18 April 2016.
Both the applicant and the Minister filed written submissions and made oral submissions through their representatives at the trial of the matter on 20 September 2017.
Consideration
Ground 3 – did the Tribunal commit jurisdictional error in dealing with accepted facts?
The applicant’s submissions contain two complaints: first, that the Tribunal “erred in the assessment of the number of abductions that may have occurred” and failed to engage “with the assessment of the risk” (ie, the risk alleged by the applicant to arise from the abductions and round-ups);[42] and secondly, that there is a “degree of confusion by the Tribunal” about the applicant’s credibility. The applicant’s submissions contend that the Tribunal found the applicant to be “generally credible”[43] but nevertheless found that he had poor credibility.[44] The Tribunal is said to have failed to take into account all of the applicant’s circumstances. I prefer the Minister’s submissions in relation to this ground.
[42] Applicant’s submissions at [33]-[36]
[43] CB 297 [18]
[44] CB 297 [27]
The first complaint relates to the applicant’s claim that he fled Sri Lanka in April 2012 because round-ups and white van abductions had started to occur again.[45] The Tribunal did not accept that round-ups or abductions increased in frequency prior to the applicant departing Sri Lanka, and did not accept the applicant’s claims about the number of people who had disappeared during such events.[46] That conclusion was based, in large part, on confusion and inconsistency in the applicant’s evidence as well as country information which was not supportive of the applicant’s claim.[47]
[45] CB 33 [5]-[7] and 298 [23]
[46] CB 303 [48]
[47] CB 300 [33]; 303 [47]
The applicant has not been able to demonstrate of how the Tribunal erred in assessing the number of abductions that occurred[48] or otherwise failed to engage in an assessment of risk.[49] It is apparent from its reasons that the Tribunal turned its mind to the applicant’s claim and the evidence before it, and was simply not satisfied that the claim was made out. It was, consequently, not satisfied that there was a real chance the applicant would be abducted or caught in a round up if he returned to Sri Lanka. The Tribunal’s approach was orthodox and no jurisdictional error occurred.
[48] Applicant’s submissions at [33]
[49] Applicant’s submissions at [36]
Contrary to the applicant’s submissions, there is no inconsistency in the Tribunal’s credibility findings. It did not find the applicant was “generally credible”. Rather, it observed that, in relation to his family background, travel, education and employment history, the applicant’s oral evidence was “generally consistent” with that in his written statement and also that previously given to the Minister’s Department.[50]The Tribunal did have concerns about the applicant’s credibility in relation to the events he claimed occurred in 2012 and later, and concluded he was not a witness of truth “in relation to these claims”.[51] So understood, there is no inconsistency in the Tribunal’s approach. No jurisdictional error arises.
Ground 4 – did the Tribunal otherwise err in its consideration of the applicant’s claims concerning van abductions and round ups?
[50] CB 297 [18]
[51] CB 297 [18]; 299 [27]-[29]; 303 [46]
The applicant’s written submissions state that the applicant does not press this ground “in current form”. The applicant’s submissions are directed (as they were in relation to the third ground) to the Tribunal’s treatment of the applicant’s claim regarding white van abductions and round-ups.
The actual error alleged by the applicant is a denial of procedural fairness. In dealing with and rejecting the above claim, the Tribunal complied with its obligations under s.425 of the Migration Act and SZBEL v Minister for Immigration.[52] The delegate, on the basis of country information, did not accept that large numbers of abductions were occurring in early 2012, as the applicant claimed.[53] That should have put the applicant on notice that the claim was in issue before the Tribunal.[54] Additionally, the Tribunal’s reasons show that at the hearing it squarely raised its concern about the claim, including the applicant’s inconsistent evidence[55] and the lack of country information supporting what he claimed to have occurred.[56] That, too, should have put the applicant on notice that the claim was in issue.
[52] (2006) 228 CLR 152
[53] CB 153
[54] SZBEL at [35]-[37]
[55] CB 298 at [24]-[27]
[56] CB 299-300 at [30]-[34]
I reject the applicant’s submission that he “did not get the opportunity to address [the] finding of the Tribunal that [in] the area of his residence there was no increase in abductions”.[57] As noted above, the delegate did not accept that a large number of abductions were occurring[58] and the applicant had the opportunity to deal with that issue before the Tribunal.[59] Further, the Tribunal’s reasons at [30]-[33] show that it raised at the hearing, for the applicant’s comment, the lack of evidence supporting the claimed abductions and round-ups. Also, the applicant’s submission that the Tribunal “carried out its inquiries post hearing”[60] (presumably, its examination of the country information) is not correct. Paragraph [31] of the Tribunal’s reasons states that country information was raised with the applicant during the hearing.
[57] Applicant’s submissions at [42]
[58] CB 153
[59] SZBEL at [35]-[37]
[60] Applicant’s submissions at [47]
I also reject the applicant’s submission that the Tribunal “should have given further opportunity to address the Tribunal’s addressing of the information”.[61] First, the argument appears to suggest that the applicant should have been given an opportunity to comment on the Tribunal’s views on the country information. There is no obligation on the Tribunal to expose its thought processes or provisional views.[62] Secondly, the information referred to by the applicant and relied upon by the Tribunal was country information, and hence no disclosure obligation arose under s.424A.[63] Secondly, the applicant’s reliance on MZYRD v Minister for Immigration[64] is misplaced. That case did not concern the Tribunal or a review under Part 7 of the Migration Act. Thirdly, as explained above, the Tribunal did raise the country information with the applicant and sought his comment on it. There was no obligation on the Tribunal to provide a further opportunity for comment.
[61] Applicant’s submissions at [43]
[62] SZBEL at [29] citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; Minister for Immigration v SZGUR (2011) 241 CLR 594 at [9] per French CJ and Kiefel J
[63] see s.424A(3)(a) of the Migration Act
[64] [2012] FCA 830 at [50]
Finally, to the extent that the applicant’s submissions suggest error in the first Tribunal decision, that is not the decision presently under review.
Conclusion
The applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 20 October 2017
6
2