AIC15 v Minister for Immigration
[2017] FCCA 2985
•5 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIC15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2985 |
| Catchwords: MIGRATION – Protection visa – none of the five grounds made out – “cumulative” consideration. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2)(a), 422B, 424A |
| Cases cited: Khadgi v Minister for Immigration and Citizenship (2010) 190 FCR 248 |
| Applicant: | AIC15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 643 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 19 October 2017 |
| Date of Last Submission: | 19 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 5 December 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the First Respondent: | Mr M. Hosking |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 30 March 2015 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 643 of 2015
| AIC15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 30 March 2015 the applicant sought judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on
23 February 2015[1] pursuant to which the Tribunal affirmed the decision of the delegate of the Minister made on 2 August 2013 not to grant the applicant a protection (class XA) visa.[2]
[1] Court book filed 22 January 2016 at pp.298-330.
[2] Court book filed 22 January 2016 at pp.130-151.
In essence, the applicant relied on three bases for his application for judicial review. First, he said the Tribunal failed to give the applicant an opportunity to comment on particular country information. Next,
he contended that the Tribunal failed to consider his statutory declaration made 11 July 2013 or failed to engage in an active intellectual process in respect of that statutory declaration. Third,
the applicant said the Tribunal failed to consider the cumulative effect of the issue of whether the law of general application in relation to illegal departure would apply discriminately for a Tamil Hindu with roots in Jaffna who had left Sri Lanka illegally.[3]
[3] Application filed on 30 March 2015.
The applicant was not represented when this application for judicial review came before me on 19 October 2017. When asked what he said, in his own words, that the Tribunal did wrong, the applicant was unable to articulate a response and instead asked for an extension of time to find legal representation because he lost his job.
Synopsis
For the reasons that follow, in my judgment none of the grounds of review were made out. It follows that this application for judicial review must be dismissed. I order the applicant to pay the Minister’s costs.
Short factual narration – the applicant’s claims
At all relevant times the applicant was a citizen of Sri Lanka, born on 18 March 1994, of Tamil ethnicity, his religion being Hindu. He arrived on Christmas Island by boat on 1 July 2012 and on 20 November 2012 applied for a protection (class XA) visa. He provided a statutory declaration dated 13 November 2012 with his visa application.
On 11 June 2013 the Department invited the applicant to attend an interview which was held on 25 June 2013. At that interview,
the applicant was invited to provide further submissions in response to which on 15 July 2013, the applicant provided a statutory declaration made a few days earlier on 11 July 2013.
In that statutory declaration, the applicant narrated events in Sri Lanka between 2009 and 2012. Relevantly distilled, the applicant claimed
that –
a)
in or about 2009, he would often be stopped by officers of the
Sri Lankan Army (“SLA”) in his area and made to remove Hindu markings from his forehead;
b)in 2010, about eight times a month for the whole school year, SLA officers would take the applicant to the SLA camp and force him to do physical labour;
c)in March 2012 SLA officers came to the applicant’s house and told his mother that he must go to the SLA camp, those officers later returning to the applicant’s house, threatening his mother and ruining his family’s television;
d)in April 2012 SLA officers came to the applicant’s house and told his mother that he must go to the SLA camp and when he did not go to their camp, SLA officers returned to his house at which time he ran and hid from them so the SLA officers told his mother that if he kept attending school they would kill him;
e)in June 2012 SLA officers came to the applicant’s house looking for him where they threatened the applicant’s mother and struck the applicant across his face; and
f)in June 2012 the applicant left Sri Lanka because he was tired of the constant harassment from the SLA.[4]
[4] First respondent’s written submissions filed 20 April 2017 at [8].
The Minister’s delegate refused to grant the applicant the protection visa he sought.
On 9 August 2013 the applicant applied to the Tribunal for a review of the delegate’s decision. On 31 January 2014 the applicant’s representative provided written submissions to the Tribunal.
On 9 September 2014 the Tribunal invited the applicant to appear before it on 30 October 2014. On that day the applicant appeared before the Tribunal with the assistance of a Tamil interpreter
and a representative. The Tribunal gave the applicant until
30 November 2014 to provide further written submissions.
On 28 November 2014 the applicant’s representative provided further written submissions to the Tribunal.
On 23 February 2015 the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa.
In the Tribunal
The Tribunal’s reasons were detailed, spanning 162 paragraphs. So far as the credibility of the applicant’s claims was concerned –
a)the Tribunal accepted that the applicant was of Tamil ethnicity and that he had been verbally abused and insulted by Sri Lankan soldiers in the past;
b)the Tribunal accepted that the applicant’s religion was Hindu but found that the applicant and his family were not committed to expressing their Hindu beliefs by practising in particular ways;
c)the Tribunal found that the applicant deliberately fabricated the claim that he was forced by the SLA to remove Hindu markings from his forehead;
d)
on the basis of inconsistencies in the applicant’s evidence, on the basis of the implausibility of the applicant not talking about the forced labour with students or staff at his school and on the basis of country information about the treatment of Tamils in
Sri Lanka, the Tribunal did not accept that the applicant was forced to work at the SLA camp in the way that he claimed; and
e)on the basis of inconsistencies in the applicant’s evidence and the Tribunal’s other adverse findings about the applicant’s credibility, the Tribunal found that the applicant and his family were not visited by the SLA in 2012 and that the applicant and his mother were not assaulted by the SLA in 2012.[5]
[5] First respondent’s written submissions filed 20 April 2017 at [17].
So far as matters relevant to s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) were concerned, the Tribunal considered whether the applicant had a well-founded fear of persecution according to convention grounds in relation to ethnicity, religion, political opinion and membership of a particular social group. The Tribunal found –
a)the applicant did not face a real chance of suffering serious harm on return to Sri Lanka by reason of his Tamil ethnicity;
b)the applicant would not face a real chance of suffering serious harm on return to Sri Lanka by reason of his religion;
c)
the applicant would not be imputed with a pro-LTTE or
anti-Sri Lankan government political opinion by reason of his Tamil ethnicity, by reason of his youth or by reason of the fact of his being a Tamil from northern Sri Lanka; and
d)the applicant would not be perceived as a failed Sri Lankan asylum seeker.
The Tribunal also considered whether the applicant would face a real chance of serious harm by reason of being detained for questioning on return to Sri Lanka. On the basis of country information, the Tribunal found that any such detention would be pursuant to laws of general application that were not applied in a discriminatory fashion and that any such detention would therefore not amount to persecution as it would not involve discriminatory and systematic conduct. The Tribunal also found that there was not a real chance that the applicant would face serious harm during any questioning.
The Tribunal considered whether the applicant would face a real chance of serious harm by reason of having breached Sri Lankan departure laws and determined the matter adversely to the applicant.
Having considered all of the applicant’s claims both individually and cumulatively, the Tribunal found that the applicant did not have a
well-founded fear of persecution for a Convention reason upon his return to Sri Lanka.
The Tribunal addressed the applicant’s complementary protection claims. Relevantly paraphrased, the Tribunal found as follows –
a)as the Tribunal had found that the applicant was not, and would not be perceived to be, an opponent of the Sri Lankan government or a supporter of the LTTE, he did not face a real risk of significant harm on return to Sri Lanka for those reasons;
b)the harassment and discrimination faced by people of Tamil ethnicity in Sri Lanka does not amount to significant harm as defined in s.5 of the Act;
c)
while some returnees to Sri Lanka have faced a real risk of significant harm, the persons who face that risk are those who are actual or imputed supporters of the LTTE or opponents of the
Sri Lankan government, which the applicant was not;
d)while the applicant might be questioned on return to Sri Lanka, that questioning did not amount to significant harm as defined in s.5 of the Act;
e)while prison conditions in Sri Lanka were poor, being in those conditions for a few days while on remand would not, in the applicant’s particular circumstances, amount to significant harm as defined in s.5 of the Act; and
f)being deprived of liberty while being questioned or held on remand would not amount to significant harm as defined in s.5 of the Act.[6]
[6] First respondent’s written submissions filed 20 April 2017 at [27].
Let me now address the grounds of review.
Ground 1
The applicant’s first ground was, in summary, that the Tribunal failed to give the applicant an opportunity to comment on particular country information on which it relied, namely the “DFAT Country Information Report Sri Lanka” dated 16 February 2015 (“DFAT Report”), referred to in appendix 2 to the Tribunal’s decision record.
At the time of the Tribunal’s decision, s.422B of the Act provided that Div 4 of Pt 7 of the Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. Under s.424A of the Act, located in Div 4 of
Pt 7, the Tribunal was required to give the applicant an opportunity to comment on information that it considered “would be the reason, or a part of the reason, for affirming the decision that is under review”. However, s.424A(3)(a) provided that the obligation in s.424A of the Act did not apply to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.
The Minister submitted that the Tribunal was not required to give the applicant an opportunity to comment on the DFAT Report, because the DFAT Report was information of the kind described in s.424A(3)(a) of the Act. I agree that it was apparent from the references to the
DFAT Report in the Tribunal’s decision record that the information in the DFAT Report was not specifically about the applicant. Instead, that information concerned a class of persons of which the applicant was a member. The applicant did not identify any other basis on which the Tribunal was obliged to give the applicant an opportunity to comment on the DFAT Report. In my view this ground was without merit as the DFAT Report was not information on which the Tribunal was required to obtain the applicant’s comment.
Ground 1 failed.
Ground 2
The applicant’s second ground was, in summary, that the Tribunal failed to consider the applicant’s statutory declaration dated
11 July 2013, or it failed to engage in an active intellectual process in relation to that statutory declaration.
The Minister contended that he accepted that the Tribunal was required to “engage in a real process of consideration of information submitted” or an “active intellectual process directed at the information”. An array of authority commanded that result.[7]
The Minister accepted that a failure to consider material that had been submitted may amount to jurisdictional error, depending on
“the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”.[8]
[7] Singh v Minister for Multicultural and Indigenous Affairs (2001) 109 FCR 152 at 164-165 [57]-[59]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 62 [46] (Hill J) and Khadgi v Minister for Immigration and Citizenship (2010) 190 FCR 248 at 270-273 [57]-[67].
[8] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 130 [111] and Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 451 [70].
However, the Minister submitted that the Tribunal did not fail to consider the information in the July 2013 statutory declaration or fail to engage in an active intellectual process in relation to that information.
The Tribunal considered the information in the July 2013 statutory declaration in the context of dealing with inconsistencies in the applicant’s different accounts of the occasions on which he claimed that SLA officers had visited his home.
At the hearing before the Tribunal the applicant stated that SLA officers had come to his house twice – once in March 2012 and once in April 2012. The Tribunal put to the applicant that he had told the delegate at the interview on 25 June 2013 that SLA officers had visited his house three times, the final time being in June 2012. The Tribunal gave the applicant the opportunity to respond in writing to that apparent inconsistency.
The Tribunal then went on to say the following –
I noted that the delegate’s decision and the submissions from the representatives to the tribunal referred to a statutory declaration made by the applicant on 11 July 2013. I advised the applicant that the statutory declaration was not on the department file and I had not seen it. I put to the applicant that the references to the statutory declaration in the delegate’s decision and in the submission to the tribunal suggested that the applicant had signed a statement saying that the army had come to his house on two occasions, in April 2012 and June 2012. I advised him that I had concerns that this was also inconsistent with the information he provided at other times. The lawyers from the representatives confirmed that the statutory declaration had been completed with the assistance of an accredited Tamil interpreter that clarified that the statutory declaration indicated that there were three visits by the Sri Lankan army — in March 2012, 24 April 2012 and 4 June 2012. I suggested to the applicant that this was still inconsistent with information he had provided [at] other times.[9]
[9] Court book filed 22 January 2016 at [50].
Further, in response to the Tribunal’s invitation to do so, the applicant’s representative provided further written submissions following the Tribunal hearing. Although those submissions referred in general terms to matters relating to the applicant’s credibility, they did not specifically deal with the inconsistencies in the applicant’s accounts of the occasions on which he claimed that SLA officers had visited his house. Nor did they enclose a copy of the July 2013 statutory declaration or otherwise refer to that declaration.
The Tribunal made findings about the credibility of the applicant’s claims that SLA officers came to his home at paragraphs 75 – 77 of its decision record. Relevantly, the Tribunal said –
[A]
s put to the applicant at the hearing, I identified a number of inconsistencies in the information he has provided at different times about when the army came to his home. In the statement provided with the visa application, he stated that the army came to his house once in March 2012 and the second time on
24 April 2012. According to the lawyer from the representatives at the hearing, the applicant provided the department with a statement, which was confirmed during the interview with the delegate, that the army had come to his house a third time, on
4 June 2012. At the hearing before me, the applicant stated the army had only come to his house twice: in March 2012 and [on] 24 April 2012.
I find the failure of the applicant to refer to a third visit by the army on 4 June 2012 in his statement provided with the visa application and at the hearing to be a significant enough inconsistency that it leads me to conclude that the applicant was not visited by the army in June 2012. His willingness to state that he was leads me to doubt the credibility of his other claims to have been visited by the army in 2012.[10]
[10] Court book filed 22 January 2016 at [75]-[76].
It seemed to me that the July 2013 statutory declaration when read together with the November 2012 statutory declaration stated that SLA officers came to the applicant’s home on three occasions in 2012 –
in March 2012, on or about 24 April 2012 and on or about 7 June 2012. With the exception of the precise date of the incident in June 2012, that was consistent with the summary of the July 2013 statutory declaration given by the applicant’s representative at the hearing, as recorded at paragraphs 50 and 75 of the Tribunal’s decision record.
In light of the passages from the Tribunal’s decision record set out in paragraph 25 and 27, it seemed to me that while the Tribunal did not have the July 2013 statutory declaration before it, the Tribunal nevertheless turned its mind to the information contained in that statutory declaration and that it engaged with that information and gave it genuine intellectual consideration. The Tribunal specifically put to the applicant that the information in the July 2013 statutory declaration was inconsistent with other accounts that the applicant had given of the occasions on which he claimed that SLA officers had visited his home, demonstrating that it had turned its mind to the way in which the information was relevant to the applicant’s claims. The Tribunal ultimately relied on the fact that the claims made in the July 2013 statutory declaration (and at the interview with the Department) were inconsistent with the claims made by the applicant at other times as a basis for making adverse credibility findings against the applicant.
The fact that the Tribunal referred to 4 June 2012 instead of
7 June 2012 in its decision record did not detract from the above submission, having regard to the fact that –
a)the July 2013 statutory declaration only claimed that the incident occurred “on or about” 4 June 2012; and
b)in any event, the Tribunal’s concerns about the applicant’s credibility did not relate to the precise date on which the incident occurred but rather to the applicant’s failure to mention in his visa application or at the hearing before the Tribunal that any incident had occurred in June 2012.
The applicant did not identify any aspect of the July 2013 statutory declaration which the Tribunal did not refer to in its decision record, and which might have made some difference to the Tribunal’s reasoning.
In my view it cannot be said that the Tribunal failed to give the applicant procedural fairness in relation to the July 2013 statutory declaration. The Tribunal put the applicant on notice that it did not have the statutory declaration and it gave the applicant further time to provide post-hearing submissions.
This ground failed.
Ground 3
The applicant’s third ground was that the Tribunal failed to consider
“the cumulative effect of the issues whether the law of general application in relation to illegal departure would apply discriminately for a Tamil Hindu who has roots in Jaffna left Sri Lanka illegally”.
This ground was imprecise. It appears to be a complaint that the Tribunal failed to consider whether Sri Lankan departure laws would be applied in a way that is discriminatory against Tamil Hindus with roots in Jaffna.
The Tribunal considered whether the application of Sri Lankan departure laws would amounted to persecution at paragraphs 98 – 107 of its decision record. Relevantly, the Tribunal said –
I do not accept that the relevant provisions of the Immigrants and Emigrants Act (I&EA) that deal with breach of the departure laws from Sri Lanka are discriminatory on their face, or disclose discriminatory intent. I find that, in light of the country information before me, the Sri Lankan departure laws are applied regardless of ethnicity to all persons who are returnees and are not applied in a way that is discriminatory or selectively enforced against a particular group of those returnees. Accordingly, I find that the application of the breach of departure laws in Sri Lanka to the applicant will be the enforcement of a law of general application and not of itself persecution for a Convention reason.[11]
[11] Court book filed 22 January 2016 at [98].
The Tribunal’s finding that “Sri Lankan departure laws are applied regardless of ethnicity to all persons who are returnees and are not applied in a way that is discriminatory … against a particular group of those returnees” necessarily entailed a finding that Sri Lankan departure laws would be applied in a way that is discriminatory against Tamil Hindus with roots in Jaffna. The Tribunal found that those laws were not applied in a discriminatory way to any group.
To the extent that the applicant’s third ground is a more general complaint that the Tribunal failed to consider the applicant’s claims cumulatively as well as individually, the Minister submitted that,
at paragraph 109 of its decision record, the Tribunal expressly stated that it considered those claims “both individually and cumulatively”. The Full Court of the Federal Court in Minister for Immigration and Border Protection v DDK16[12] recently made observations about cumulative consideration of claims at paragraphs 32 - 39. Here, the Tribunal did not offend any of those observations.
[12] [2017] FCAFC 188
This ground failed.
Ground 4
The applicant’s fourth ground is that the Tribunal failed to consider whether the applicant’s name would identify him as Hindu.
The applicant did not identify at what point this claim was made to the Tribunal.
It did not appear from the applicant’s initial interview, his visa application, his statutory declarations dated 25 November 2012 and 11 July 2013, the delegate’s decision record, the applicant’s pre-hearing submissions or post-hearing submissions or the Tribunal’s detailed account of the hearing that the applicant ever claimed that his name would identify him as Hindu. No such claim was made.
Even if the applicant had claimed that his name would identify him as Hindu, the Tribunal would not have fallen into error by failing to refer to that matter in its decision record. The Tribunal accepted that the applicant was Hindu. However, it went on to find that the applicant did not face a real chance of serious harm in Sri Lanka for that reason, because country information indicated that individuals were not targeted for harm in Sri Lanka because they were Hindu. It followed that, even if the Tribunal had accepted that the applicant’s name would identify him as Hindu, it would not have found that the applicant faced a real chance of serious harm (or a real risk of significant harm) for that reason.
The Tribunal was not obliged to refer to every piece of evidence and every contention made by an applicant in its written reasons. In this case, any finding that the applicant’s name would identify him as Hindu was subsumed in the more general finding that the applicant is Hindu.
This ground failed.
Ground 5
The applicant’s fifth ground is that the Tribunal failed to ask the applicant whether the Tribunal officer who administered the applicant’s oath at the beginning of the Tribunal hearing had mentioned to the applicant that he could swear his oath on the Bhavagad Gita.
This ground arose from the fact that, at the beginning of the Tribunal hearing, the applicant took an oath on the Bible. The Tribunal later asked the applicant about that at the hearing. The Tribunal described this exchange in its decision record as follows –
I asked the applicant why at the beginning of the hearing he had taken an oath on the Bible to tell the truth during the hearing, rather than making a solemn promise as a Hindu. He replied that he respected all religions. I asked the applicant why he chose to make a solemn promise on the Bible rather than as a Hindu.
He stated that the hearing officer at the beginning of the hearing only gave him two options: to make an oral affirmation or to swear on any religious book. I asked the applicant why he then did not swear on the Bhagavad-Gita. He stated that he only noticed the book was available later during the hearing.[13]
[13] Court book filed 22 January 2016 at [60].
The Tribunal considered that evidence when it came to determine whether it accepted the applicant’s claim to be Hindu. As noted above, although it expressed some doubts the Tribunal ultimately accepted that the applicant was Hindu and assessed his claims on that basis.
The applicant did not articulate how the Tribunal’s failure to ask the applicant whether the Tribunal officer who administered his oath had mentioned that the Tribunal had a copy of the Bhavagad Gita could amount to jurisdictional error. It was not apparent to me how the Tribunal’s failure to ask that question could give rise to an error of that kind.
The Tribunal possessed the necessary power to require a person appearing before it so as to give evidence to take an oath or to make an affirmation. The Tribunal possessed the necessary power to administer an oath or an affirmation to a person appearing before it.
The applicant’s evidence was that the Tribunal officer gave him the option to swear an oath on any religious book. No obligation was on the Tribunal to identify the particular religious books on which a person may choose to swear an oath.
Nor was there any obligation on the Tribunal, as a matter of procedural fairness, to ask the applicant whether the Tribunal officer who administered his oath had mentioned that the Tribunal had a copy of the Bhavagad Gita. The Tribunal gave the applicant three opportunities to explain why he did not swear an oath on the Bhavagad Gita. On the third occasion the applicant explained that he did not swear on the Bhavagad Gita because he only noticed that it was available later during the Tribunal hearing. It followed from that evidence, as a matter of logical inference, that the applicant was not aware at the beginning of the Tribunal hearing that the Bhavagad Gita was available. In these circumstances, it was difficult to see what further information the Tribunal might have obtained by asking about what had passed between the Tribunal officer and the applicant at the commencement of the hearing.
In any event the Tribunal accepted that the applicant was Hindu.
It went on to find that the applicant did not face a real chance of serious harm in Sri Lanka for that reason, because country information indicated that individuals were not targeted for harm in Sri Lanka because they are Hindu. Even if the Tribunal had asked the applicant whether the Tribunal officer who administered his oath had mentioned that the Tribunal had a copy of the Bhavagad Gita, in my view no different outcome to the Tribunal’s decision would have followed.
Ground 5 failed.
Conclusion
In my judgment none of the grounds of review succeeded.
This application is dismissed. I order the applicant to pay the Minister’s costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 5 December 2017
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