AJK15 v Minister for Immigration - [2016] FCCA 2444

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJK15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2444

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection (class XA) visa – application for merits review – no discernible jurisdictional error.

Legislation:
Migration Act 1958

Applicant:

AJK15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 690 of 2015

Judgment of:

Judge Riley

Hearing date:

8 August 2016

Date of last submission:

8 August 2016

Delivered at:

Melbourne

Delivered on:

8 August 2016

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the first respondent:

Ned Rogers

Solicitors for the first respondent:

Australian Government Solicitor

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Australian Government Solicitor

ORDERS

DISMISSAL

The application filed on 2 April 2015 be dismissed.
The applicant pay the first respondent’s costs of the proceeding, fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 690 of 2015

AJK15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa.
The applicant is a Sri Lankan of Sinhalese ethnicity and Roman Catholic religion. He claimed that he would be persecuted because of his support for the United National Party (“the UNP”) and because he was married to a Tamil woman. He claimed that he had been involved in politics since 1991 and that his father had been an active and prominent supporter of the UNP.
The applicant claimed that many threats had been made against him and his family. He said his family had relocated within Sri Lanka, but the threats continued, and their house was damaged by supporters of the government. The applicant claimed that he went to the Middle East in April 2006 to escape the threats. He said that when he returned to Sri Lanka, he bought a three-wheeler to transport people. However, the applicant claimed that he was refused a licence because he supported the UNP.
The applicant said that he and his wife had been abused because of his wife’s Tamil ethnicity. He said stones had been thrown at their house. The applicant also claimed that he would be harmed for reason of his illegal departure from Sri Lanka.
The delegate did not accept that the applicant had any significant involvement with the UNP, but did accept that he had had a low level involvement. The delegate did not accept that the applicant had been refused a licence to operate a three-wheeled vehicle because he was a supporter of the UNP. The delegate considered that the abuse the applicant and his wife had suffered because she is a Tamil did not amount to serious or significant harm.
The Tribunal affirmed the delegate’s decision for essentially the same reasons. The Tribunal considered that there were serious deficiencies in the applicant’s account of his involvement with the UNP. The Tribunal asked the applicant many questions about elections in Sri Lanka. The applicant, on his own admission, had been absent from Sri Lanka during the period of recent national and provincial elections. The applicant was unclear about the district in which he had been entitled to vote in the local elections.
At the Tribunal hearing, the applicant said that he had done a little bit of work for the UNP in 2011 in a local election. However, the applicant said he had not been deeply involved in any serious work. The Tribunal noted that the applicant had provided an undated letter to the Department of Immigration from the UNP which said that the applicant:
… is a leading member of the United National Party (UNP). He worked hard in all the election campaigns of the UNP in the past.
The Tribunal noted that the applicant had not established that he was a leading member of the UNP. The Tribunal further noted that the applicant had not been in Sri Lanka during any of the recent elections in that country, except for one local election. Due to the inconsistencies between the applicant’s evidence and the letter from the UNP, the Tribunal gave the letter no weight.
The Tribunal did not accept that the applicant’s home had been stoned because of his involvement in politics. The Tribunal did not accept that the applicant was unable to have the opportunity to use the three-wheeler.
The Tribunal did not accept that there was a real risk of the applicant being suspected of LTTE sympathies by reason of his marriage to his wife, who is a Tamil. The Tribunal noted that the North Western Province of Sri Lanka, where the applicant had lived with his wife, had been under the control of the authorities for the entire period of the civil war. The Tribunal did not consider that any negative comments or being looked down upon by others constituted serious or significant harm. The Tribunal considered that the stone throwing was not for reasons of the applicant’s political opinion, because he was suspected of any involvement with the LTTE or for any reason connected with his wife being Tamil.
The Tribunal also considered the consequences for the applicant of him having left Sri Lanka illegally. The Tribunal considered that the applicant would probably be arrested and held in remand for a brief period. The Tribunal was satisfied that the applicant would be released on bail and, at worst, would have to pay a relatively modest fine.
The Tribunal considered that there was only a remote chance that the applicant would be required to pay a financial surety to get bail. The Tribunal considered that the applicant, with the assistance of his family, would be able to pay any financial surety that was required for him to get bail. The Tribunal noted that the applicant said that there would be “no problem” with the payment of the fine. The Tribunal concluded that the applicant would be able to pay any fine that might ultimately be ordered against him.
The Tribunal considered all of the applicant’s claims cumulatively and did not consider that they would lead to the applicant suffering any serious or significant harm while in remand for a few days at most. The Tribunal did not accept that the applicant faced a real risk of serious or significant harm if he were to return to Sri Lanka.
The applicant was not legally represented before this court. His application, filed on 2 April 2015, states that the grounds of review are as follows:
(1)The Refugee Review Tribunal did not afford me procedural fairness.
(2) The Refugee Review Tribunal applied the wrong legal test.
There were no particulars provided in the application of those grounds. The application was supported by an affidavit of the applicant which did not elaborate in any way on the grounds of review. The applicant did not file written submissions.
In oral submissions to the court, the applicant simply said that he had said everything to the Tribunal and asked the court to consider it. This is essentially an application for merits review, which this court is not permitted to provide.
The applicant’s claim that the Tribunal did not give him procedural fairness has not been supported by a transcript or any other evidence of what took place during the Tribunal hearing or in the Tribunal’s processes overall. The decision record shows that the applicant appeared before the Tribunal on 26 February 2015. He was assisted by an interpreter in the Sinhalese and English languages. He was also assisted in the review before the Tribunal by a registered migration agent.
The Tribunal’s decision record sets out various questions and answers that were given during the Tribunal hearing. The Tribunal’s decision record also indicates that the applicant’s agent made a submission. The Tribunal appears to have taken into account and considered all of the applicant’s claims.
There is nothing in the material to suggest that the Tribunal may have prejudged the outcome of this matter. The decision extends to 18 pages and is detailed and appears to be comprehensive. There seems to be no basis on which it could be suggested that the Tribunal failed to comply with its codified obligations under the Migration Act 1958. The Tribunal made its decision on essentially the same basis as the delegate had made his decision. I am unable to see any basis upon which it could be said that the Tribunal denied the applicant procedural fairness.
The second ground that the applicant claimed in his application was that the Tribunal applied the wrong legal test. The Tribunal set out in its reasons for decision the correct legal tests. The Tribunal appears, in its reasons for decision, to have applied those tests correctly.
I am not persuaded that either of the applicant’s grounds has been made out. I have read the Tribunal’s reasons for decision and have been unable to detect any jurisdictional error in them. In the circumstances, the application must be dismissed.

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

Date: 21 September 2016