Aii15 v Minister for Immigration

[2015] FCCA 3478

FEDERAL CIRCUIT COURT OF AUSTRALIA

AII15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3478

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal applied the wrong test and was biased.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: AII15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 119 of 2015

Judgment of: Judge Cameron

Hearing date: 1 December 2015

Date of Last Submission: 1 December 2015

Delivered at: Perth

Delivered on: 1 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M. Hawker of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 119 of 2015

AII15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 20 June 2012. On 12 November 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka because of ethnicity and imputed political opinion. On 19 July 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

Primary application

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims in a statutory declaration in support of his application:

   a)he is a Tamil;

   b)all his life he had been targeted by the Sri Lankan army and the Criminal Investigation Department (“CID”) because of his ethnicity and imputed political opinion.  He feared that if he returned to Sri Lanka he would be persecuted for those reasons;

   c)in 2002, when he was seventeen, he left Sri Lanka on a boat headed for the United Kingdom.  At the time the authorities had been randomly arresting young men and torturing young Tamil men.  Two of his neighbours’ children had disappeared and ten to twelve young men from his village had been tortured;

   d)the boat on which he was travelling broke down off the coast of Saudi Arabia and he was detained and then returned to Sri Lanka.  On his return he was beaten by CID officers and questioned about why he had left.  They had wanted to know who had organised the trip and when he did not tell them anything they kicked him;

   e)in 2005 the Liberation Tigers of Tamil Eelam (“LTTE”) confiscated his uncle’s boat and detained his uncle.  The LTTE suspected his uncle of telling the army about their boat movements and they kept him until the end of the civil war four years later;

   f)between 2002 and 2011 the army would visit his village to check that the villagers still lived at their registered addresses.  They always asked for money and if he failed to give them any they threatened him;

   g)in May 2011 the army asked him to identify LTTE members and supporters.  He was unable to tell them anything so they took him to a camp about fifteen kilometres from his village.  He was kept there for a day, questioned for two or three hours and threatened with being taken to the CID headquarters and gaoled under Sri Lanka’s Prevention of Terrorism Act.  The next day a village elder who was also a politician came to the camp and got him out;

   h)at that time he worked as a stonemason and passed the army camp about three or four times a day.  He was often stopped and sometimes detained for an hour or two until someone from his village could come and identify him;

   i)in February 2012 the army were looking for him and surrounded his home.  Prior to this seven people from his village had been abducted and killed.  At the time they surrounded his home he had been hiding at his wife’s grandparent’s house.  A friend arranged for him to leave by boat and to seek refuge in Australia;

   j)his wife had told him that the army had visited his home twice since his departure asking about his whereabouts;

   k)if he returned to Sri Lanka he would be questioned by the security forces, beaten and detained for having left the country illegally.  His prior history meant he would be tortured and punished severely; and

   l)the persecution he had suffered had been at the hands of agents of the Sri Lankan government so the government would be unable or unwilling to protect him.

2. At his departmental interview the applicant had relevantly claimed that when he was detained in May 2011 he was taken by the CID to a temple where he was shown obscene photographs.  He claimed that nothing else happened to him and he was released the next day.

Tribunal review

1. In a written submission to the Tribunal the applicant’s representatives argued that the applicant feared harm in Sri Lanka because of his Tamil ethnicity, his imputed political opinion as a perceived supporter of the LTTE and his status as a failed asylum seeker.  It was also submitted that the applicant had fled Sri Lanka because of his association with his former employer who had been killed, presumably by the army because he was a suspected supporter of the LTTE.

2. At a Tribunal hearing on 4 December 2014 the applicant made the following additional claims:

   a)he had never been a member of the LTTE or a Tamil activist but was a Tamil separatist and believed that if the LTTE controlled certain areas of Sri Lanka then Tamils could be free;

   b)he had been detained in March 2011, not May 2011 as he claimed at his departmental interview.  The police had taken him to a temple where they asked him about the LTTE and showed him a sex film as a threat that if he did not cooperate his wife and sister would be raped.  He was held for four days and released when a politician paid a bribe;

   c)while he was detained he was made to kneel in the sun and was beaten on the soles of his feet;

   d)after his release he was left alone but the authorities resumed looking for him between May 2011 and June 2012;

   e)shortly after commencing employment, he heard that his employer was a supporter of the LTTE.  In late 2011 or early 2012 his employer was shot dead after becoming involved in a fight at a drinking party.  He, the applicant, had not been at the drinking party but had been harmed because the authorities thought he had been.  The authorities continued to search for the former employer’s associates; and

   f)he also feared returning to Sri Lanka because he had left the country illegally.  If he was fined for his illegal departure, he would be unable to pay the fine.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.

2. The Tribunal was not satisfied that the applicant faced harm in Sri Lanka by reason of his Tamil ethnicity.  In that connection:

   a)the Tribunal accepted that the applicant had attempted to leave Sri Lanka for the United Kingdom in 2002 and that he had faced difficulties in Sri Lanka at that time, and subsequently, as a result of the civil war.  It also accepted that the applicant had been forced to return to Sri Lanka and on his return was questioned, and possibly mistreated, before being released.  However, it found that the applicant had not, subsequent to his initial detention and questioning, suffered serious harm as a result of his attempted departure in 2002;

   b)the Tribunal did not accept that the applicant had been mistreated and beaten on the soles of his feet.  In that regard, it noted that at his departmental interview the applicant said he had never been harmed in Sri Lanka but at its hearing he claimed that he had been beaten for four days while in detention.  Based on that inconsistency and the fact that the applicant did not have any links to the LTTE, the Tribunal rejected the applicant’s claim that he had been beaten while in detention and found that he had fabricated that claim.  The Tribunal also found that the applicant had fabricated his claim to have been shown a sex film as a threat that female members of his family would be raped.  It found that the applicant’s evidence on that matter was neither genuine nor sincere;

   c)while the Tribunal accepted that the applicant’s uncle had been detained by the LTTE, having regard to the applicant’s circumstances and the fact that he had been able to carry on with his life with only occasional questioning and monitoring by the Sri Lankan authorities, the Tribunal did not consider that his uncle’s detention in 2005 put the applicant at risk of serious harm;

   d)based on country information, the Tribunal accepted that the Sri Lankan army might have visited the applicant’s village between 2002 and 2011 to check that people still lived at their registered addresses and might have asked for money.  However, it noted that information on the changed circumstances in Sri Lanka indicated that the monitoring of Tamils had declined.  It therefore did not accept that the applicant would face serious harm as a result of the monitoring activities of the Sri Lankan authorities;

   e)while accepting that the applicant had been detained and questioned about the LTTE in May 2011, the Tribunal noted that the applicant had been released the next day.  It did not accept that the applicant had been released because of the payment of a bribe and found that he had been released because the army had accepted that he could not identify LTTE members and supporters and was therefore not a person of interest to them;

   f)the Tribunal noted the applicant’s claims that he had often been stopped and detained for an hour or two while passing the army camp near his home.  While it accepted that that treatment would have been irritating and inconvenient, it was not satisfied that it amounted to serious harm.  The Tribunal found that the detention was not motivated by a Convention reason but was undertaken for the security purposes of the camp.  It also accepted that if the applicant returned to Sri Lanka the army might continue to question him from time to time as part of maintaining the security of the camp but it found that this would not amount to significant harm;

   g)the Tribunal was not satisfied that in February 2012 the army had surrounded the applicant’s house and attempted to detain him.  Considering the applicant’s prior attempted departure from Sri Lanka and his claimed instances of questioning by the authorities, the Tribunal did not accept that there would have been any further reason for the army to seek him out or that it had had an ongoing interest in him.  It found that the applicant had not had any relevant links to the LTTE which would have made him of interest to the authorities.  For the same reasons, the Tribunal did not accept that the army had visited his house after his departure from Sri Lanka; and

   h)the Tribunal noted that the applicant had claimed that on one occasion the authorities had threatened to gaol him under the Sri Lankan Prevention of Terrorism Act.  Having regard to the applicant’s circumstances and country information indicating that no returnees from Australia had been charged under that Act, the Tribunal did not accept that there was a real chance that the applicant would be charged under that Act.  It also did not accept that the applicant faced a real chance of serious harm as a result of being threatened with being charged and gaoled under that Act.

3. The Tribunal rejected the applicant’s claim that he faced harm because of his association with his former employer and found that he was not suspected of having links to the LTTE because of the claimed killing of his former employer or his association with him.  It was not satisfied that the applicant’s former employer had had any links to the LTTE or that he had been killed by the army for having such links.  The Tribunal noted that the applicant’s evidence on the matter was speculative and generalised.  It also found that the applicant’s failure to refer to his former employer at his entry interview indicated that the claim was embellished or fabricated.

4. In relation to the applicant’s claim to be a Tamil separatist, the Tribunal accepted that he might adhere to an ideology supporting a separate Tamil state in Sri Lanka.  However, it found that the applicant was not an activist and would not be suspected of having been.  Based on his evidence that he had not been an activist, the Tribunal considered that he would not be one if he returned to Sri Lanka.

5. After considering the country information before it, the Tribunal was not satisfied that the applicant faced a risk of harm in Sri Lanka as a failed asylum seeker.  For the following reasons, it was also not satisfied that the applicant faced harm for reasons of his illegal departure from Sri Lanka:

   a)the Tribunal found that although the applicant had come under the close scrutiny of the Sri Lankan authorities after his attempted departure in 2002, the authorities had ultimately been satisfied that he should be released and he had no longer been of interest to them.  In those circumstances, the Tribunal considered that if the applicant presented as an illegal departee for a second time, such a circumstance would not elevate the chance of him being seriously harmed;

   b)the Tribunal accepted that there was a significant likelihood that the applicant would be charged and prosecuted for his illegal departure but it found that the Sri Lankan Immigrants and Emigrants Act was applied to all persons who had departed Sri Lanka illegally, regardless of ethnicity.  It found that the law was a law of general application which did not have discriminatory intent or impact and therefore did not give rise to persecution under the Convention;

   c)the Tribunal noted that country information indicated that the applicant would be likely to be fined Rs50,000 for having departed Sri Lanka illegally.  It noted the applicant’s claim that he did not have the money to pay such a fine but found that he would be able to find employment and enter into an arrangement to pay it by instalments.  The Tribunal did not consider that the fine would amount to significant harm; and

   d)based on country information, the Tribunal accepted that prison conditions in Sri Lanka were poor and overcrowded and that the applicant might suffer discomfort while being detained pending an appearance before a court in relation to charges under the Immigrants and Emigrants Act.  However, based on country information, it found that he would only be remanded for a short period of between one to several nights and did not accept that that relatively short period of remand would amount to significant harm.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.Jurisdictional error.

   2.Bias based on conscious or unconscious prejudice by ignoring relevant material.

   3.Identifying a wrong issue based on a wrong question.

2. At the hearing of this application the applicant also made various submissions which were directed to the merits of his application for a protection visa.  Because such submissions did not raise any potential issues of jurisdictional error on the Tribunal’s part, they need not be considered further. 

Ground 2

1. It is convenient to deal first with the second ground of the application.  It alleged that the Tribunal ignored relevant material and that this behaviour evidenced bias on its part.  The only matters which the applicant contended that the Tribunal had ignored were his individual problems or circumstances.  However, the Tribunal did little else in its lengthy decision record but consider those matters.  It is not apparent that any material of relevance was ignored by the Tribunal.  That being so, the allegation that the Tribunal was biased because it ignored relevant material must fail because its foundational fact has not been made out.

Ground 3

1. The third ground of the application was not particularised and when the applicant was invited to elaborate on it or to explain it, he was unable to do so.  The Tribunal’s decision record discloses a proper understanding of the relevant law.  I am not persuaded that the Tribunal asked itself a wrong question and thereby misdirected itself as to the issues which it had to consider.

Ground 1

1. Turning to the first ground of the application, it should at the outset be noted that it was not particularised and really alleges nothing which the Court could consider.  It is convenient to deal with this ground after the other two grounds because it may be that grounds two and three were intended to be particulars of the first ground.  For the reasons already given, those two grounds have not identified jurisdictional error on the Tribunal’s part.

2. Significantly for the first ground of the application, the applicant did not point to any act or omission on the Tribunal’s part which would arguably amount to jurisdictional error.  Although the applicant was unrepresented and faced particular difficulties in presenting his case, the latitude and assistance which the Court can properly provide to a person in his circumstances does not extend to identifying a case whose existence he has not made sufficiently plain in his pleading or in his submissions.

3. The applicant has not identified any matter which would lead the Court to conclude that the Tribunal was guilty of jurisdictional error on this occasion.  The result is that the present discussion of the applicant’s allegations might be considered short when compared with the lengthy exposition of the Tribunal’s decision record.  However, a detailed exposition of the Tribunal’s decision record assists in understanding why the applicant’s allegations were not made out. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 23 December 2015