AIC16 v Minister for Immigration

[2018] FCCA 885

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIC16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 885

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa –  applicant seeking merits review – no discernible jurisdictional error.

Legislation:
Migration Act 1958 s.424AA

Applicant: AIC16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 275 of 2016

Judgment of: Judge Riley

Hearing date: 14 March 2018

Date of last submission: 14 March 2018

Delivered at: Melbourne

Delivered on: 14 March 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Oliver Young

Solicitors for the first respondent: Sparke Helmore Lawyers

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore Lawyers

ORDERS

1. The application filed on 15 February 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 275 of 2016

AIC16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)[1]

Introduction

[1]     Reasons for judgment were given orally on 14 March 2018. The applicant filed an application for an extension of time to appeal on 5 April 2018. The registry advised chambers on 10 April 2018 that the applicant had applied for an extension of time to appeal. Chambers ordered a transcript of the reasons for judgment on 10 April 2018. Auscript provided the transcript of the reasons for judgment on 11 April 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 12 April 2018.

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The applicant is a citizen of Sri Lanka.  He arrived in Australia on 31 May 2012.  He was an irregular maritime arrival.  He applied for a protection visa on 31 August 2012. 

2. The applicant claimed that:

   a)he had been involved in a fight with a member of the Sri Lankan Army;

   b)the soldier wanted the applicant to buy him some cigarettes;

   c)the applicant had no money, so he refused;

   d)the applicant and the soldier then had a physical fight and the applicant ran off; and

   e)when he told his uncle, with whom he lived, about this incident, the uncle took him to the army camp to apologise. 

3. The applicant, in his initial statutory declaration, said that he did apologise to a commander who accepted the apology.  In subsequent versions of what occurred, the applicant said that he and his uncle actually went to the army camp to complain, or, alternatively, to both apologise and complain.  In any event, the applicant claimed that he continued to be harassed by the soldier.  He said he decided to flee to avoid further difficulties.

4. A delegate of the Minister for Border Protection and Immigration refused the applicant’s protection visa. The applicant applied for review by the Tribunal. The Tribunal affirmed the delegate’s decision on 21 June 2013.  However, that decision was set aside by this court by consent on 7 March 2014.  The matter was remitted to the Tribunal for further consideration. 

5. The Tribunal was reconstituted.  The Tribunal conducted a hearing on 11 August 2014.  The applicant attended with the assistance of a Tamil interpreter and his migration agent.  The applicant’s migration agent provided post-hearing written submissions. The Tribunal member who conducted the hearing became unavailable and the Tribunal was, again, reconstituted.

6. The applicant attended a further hearing before the second reconstituted Tribunal on 17 December 2015. The Tribunal, during that hearing, put certain information to the applicant for comment pursuant to s.424AA of the Migration Act 1958.  The applicant took the opportunity to have time to provide a response.  He provided a written response on 22 January 2016. 

7. The Tribunal affirmed the decision of the delegate to refuse the applicant a protection visa largely due to inconsistencies in the applicant’s evidence about whether he had gone to the army camp to apologise or complain or both. 

8. The Tribunal did not accept that the altercation the applicant had with a soldier was at all significant.  It did not accept that the applicant had gone to the army camp to apologise and did not accept that a soldier had come looking for him, causing the applicant to go into hiding.  The Tribunal considered that the applicant was not at serious or significant risk of harm because of a minor altercation with a soldier. 

9. The Tribunal also considered whether the applicant was at risk because of his Tamil race, his status as a failed asylum seeker or the fact that he had illegally departed Sri Lanka.  The Tribunal accepted that the applicant might be questioned and possibly detained for a short period.  However, the Tribunal considered that the applicant did not have an adverse profile and did not consider that the applicant would suffer serious or significant harm during any short period of detention.

10. The Tribunal also considered the applicant’s further claims in relation to:

    a)the Sri Lankan Navy:

    i)assisting with his departure from Sri Lanka; and

    ii)providing food to the people on the boat that the applicant travelled to Australia on; and

    b)the risks he faced if he identified the sailors who provided the food to a people-smuggling boat. 

11. However, for the reasons that it stated, the Tribunal did not accept that the navy had any involvement in the applicant’s departure from Sri Lanka. 

12. The Tribunal considered the applicant’s claims individually and cumulatively, and concluded that the applicant did not face a real risk of serious or significant harm.

13. The applicant applied to this court on 15 February 2016.  The grounds of review in the application are as follows:

    1.The decision of the Tribunal:

    a) is affected by an error of law; and

    b)denied the applicant procedural fairness.

    2.I have made an [application] procedural for assistance through Victoria Legal Aid and am waiting for a decision. 

14. The applicant appeared before the court today without the benefit of legal assistance.  He said that he had applied for legal aid, but had not heard anything from them.  The second “ground” is not a ground of review. 

15. The applicant was invited to explain to the court his grounds of review as set out in the application or any other grounds of review that he might have.  The applicant told the court that everything is the same as he had said previously.  He also said that he was asked to provide evidence, but that he could not get evidence from “there”, presumably meaning Sri Lanka, and therefore he cannot go back.  These statements are essentially seeking merits review which this court is not permitted to provide. 

16. I have read the Tribunal’s reasons for decision and looked at relevant documents in the court book.  I have been unable to discern any jurisdictional error.  The Tribunal afforded the applicant procedural fairness.  The Tribunal correctly applied the law.  The Tribunal considered all of the applicant’s claims and does not appear to have considered any irrelevant matters.  The Tribunal has reached a decision that was open to it.  Consequently, there appears to be no basis upon which it would be appropriate to remit the matter to the Tribunal.

17. Therefore, the applicant will be dismissed with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 12 April 2018