AJL15 v Minister for Immigration

[2017] FCCA 2593

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJL15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2593

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – the applicant had a real and meaningful hearing – no obligation enlivening s.424A – the Tribunal complied with its statutory obligations – no jurisdictional error –amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 438, 476

Applicant: AJL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 95 of 2016

Judgment of: Judge Street

Hearing date: 25 October 2017

Date of Last Submission: 25 October 2017

Delivered at: Sydney

Delivered on: 25 October 2017

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 95 of 2016

AJL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 December 2015, affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant is a Tamil Hindu and feared returning to Sri Lanka by reason of his active involvement in the election campaign of his uncle in 2009 and alleged incidents in July 2009 and 13 June 2011. The applicant alleged that the Sri Lankan police continued to harass him up until he left Sri Lanka in July 2012.  The applicant believed he would be harmed by the Sri Lankan police and those connected with the People’s Alliance party who do not wish smaller parties to emerge. The applicant alleged that he would be subjected to harsher treatment by the authorities because he fled Sri Lanka. The applicant also claimed to fear harm by reason of his ethnicity, by reason of being imputed as a supporter of the LTTE, by reason of his illegal departure, and as a failed asylum seeker.

3. The applicant commenced a journey to leave Sri Lanka on 27 July 2012. After arriving at the Cocos Islands, the applicant was transferred to Christmas Island and participated in an interview on 26 September 2012. 

4. The delegate, on 13 December 2013 found the applicant failed to meet the criteria for the grant of the visa, and also made adverse credibility findings in relation to part of the applicant’s claims. A differently constituted Tribunal affirmed the decision of the delegate, and that decision was set aside by orders of this Court on 18 June 2015 and remitted to a differently constituted Tribunal for review. 

The current Tribunal’s decision

1. On 24 June 2015 the current Tribunal wrote to the applicant informing the applicant that the matter had been remitted. On 11 August 2015, the current Tribunal wrote to the applicant inviting the applicant to appear at a hearing on 24 September 2015. The applicant appeared on that date to give evidence and present arguments.

2. On 16 November 2015, the Tribunal wrote to the applicant, pursuant to s 424A of the Act, inviting the applicant to comment or respond to information before the Tribunal which may be the reason or part of the reason for affirming the decision under review. That letter set out clear particulars of information obtained from an overseas post relating to questions concerning documents provided by the applicant.

3. On 30 November 2015, the applicant’s migration agent sent an email to the Tribunal, requesting an opportunity to contact the relevant authorities in Sri Lanka for the purpose of authorising the direct communication with the Tribunal. On 1 December 2015, the Tribunal wrote to the applicant, indicating that the Tribunal intended to finalise the matter on 11 December and would consider any material received on or before that date. On 21 December 2015, the Tribunal affirmed the decision under review. 

4. The Tribunal in its reasons identified the background to the application for review. The Tribunal set out the relevant law. The Tribunal summarised the applicant’s claims and evidence. The Tribunal referred to the s 424A letter sent to the applicant. Whilst there was a response sent to the Tribunal in relation to the letter it did not engage with the substance of the clear particulars provided. The Tribunal identified the applicant’s ethnicity and background.

5. The Tribunal was satisfied the applicant’s involvement and activities during the elections, which included canvassing for votes, did not give rise to the applicant having a significant profile of adverse interest, or that he has an adverse profile as a result of his uncle’s activities, or that in Australia, he associates with people connected with the LTTE. The Tribunal observed in light of the applicant’s responses in the course of the hearing, the Tribunal was satisfied the applicant’s knowledge about the party and the People’s Alliance party is limited and general, supporting the Tribunal’s findings that the applicant’s political activities were limited. 

6. The Tribunal turned to the incidents the applicant alleged that he had suffered. The Tribunal did not accept that in April 2009 or July 2011, or on any other occasion, the applicant was beaten by anyone or that he was taken anywhere, or that any marks he has in relation to burns on his back are as a result of this incident, or that he went into hiding at his sister’s home, or that two weeks subsequent to the incident anyone went to his home and shouted his name, or that police ever went to his home looking for him, or that he has done anything that could be of interest to the Sri Lankan police, or that his mother contacted him and told him not to return, or that any cases pending against him in Sri Lanka, or that he has provided fraudulent documents to the UK authorities because of the harm that he suffered and because he had no other choice, or that his uncle or president of the party had suffered any of the claimed harm. The Tribunal was satisfied the applicant had fabricated claims to harm to support the application for protection. 

7. Having considered the applicant’s claims singularly and cumulatively, the Tribunal was not satisfied the applicant had suffered any of the claimed harm, or that he has any profile on those grounds, which is or would be of adverse interest to the Sri Lankan authorities. The Tribunal was not satisfied the applicant’s political activities give him a profile which would mean that there is a real chance or a real risk of him suffering serious or significant harm on the basis of those political activities. 

8. The Tribunal referred to country information and did not accept that the applicant would be imputed with an adverse political opinion by the Sri Lankan authorities because he is a Tamil of the Hindu ethnicity from Colombo, or that he left Sri Lanka illegally, or as a failed asylum seeker, or for any other reason claimed. Having considered the evidence cumulatively, the Tribunal was not satisfied the applicant faces any discrimination or ill treatment amounting serious or significant harm on the basis of being a Tamil. 

9. The Tribunal turned to the applicant being a failed asylum seeker. The Tribunal found there is not a real chance the applicant would suffer harm amounting to persecution on the basis of being a Tamil failed asylum seeker from Colombo, or a returnee from Australia.

10. The Tribunal considered the applicant’s illegal departure and found the laws are of general application and not applied in a discriminatory manner, and serve a legitimate purpose, and that they are not selectively enforced. The Tribunal was not satisfied that the treatment faced by the applicant, having departed Sri Lanka unlawfully, either at the airport or on arrival, or in the community, or on remand awaiting a bail hearing, or when later dealt with by the Courts, amounts to persecution or gives rise to serious harm in the reasonably foreseeable future. The Tribunal was not satisfied the process involves or gives rise to differential treatment for a Convention reason. 

11. The Tribunal was satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly for one or more of the five Convention reasons if he returns to Sri Lanka on the basis of his illegal departure, being of Tamil ethnicity from Colombo, a failed asylum seeker, or for his illegal departure, or for any other reason. 

12. The Tribunal was not satisfied the applicant faces a real chance of serious harm for being a failed asylum seeker, for his illegal departure, for being a forced returnee, or for any other reasons, either cumulatively or singularly. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for a convention reason in Sri Lanka now in the reasonably foreseeable future. Tribunal found the applicant is not a refugee and did not meet the criteria under section 36(2)(a) of the Act.

Assessment of complementary protection criteria

1. The Tribunal turned to the issue of complementary protection. The Tribunal found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm as a consequence of the poor conditions in prisons due to overcrowding during any period in which he may be held in jail or remand. The Tribunal found there is not a real risk that the applicant will suffer significant harm for any other reason or reasons. 

2. The Tribunal did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm. The Tribunal found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. On 17 March 2016, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. 

2. The applicant filed an amended application on 20 April 2016, the grounds of which are as follows:

   l. The RRT did not comply with section 424AA and it has breached its statutory duty imposed by section 424A of the Act as well. The RRT has failed to put to me orally the concerns and adverse information which arose during the RRT hearing and in writing the concerns and adverse information which arose in my review (reasons for refusing my review). It has failed to invite me for my comments, after the hearing, before it made its decision.

   2. The RRT made the following jurisdictional error, in the context of my claim for complementary protection pursuant to section 36(2) (aa) of the Migration Act 1958 (Cth). The RRT fell into jurisdictional error in failing to consider whether there was a real risk that would suffer “significant harm” If I were to return to Sri Lanka by reason of the enactment of the Immigrants and Emigrants Act (the I&E Act). As defined in s 36(2A), “significant harm” includes “degrading treatment or punishment” which in turn, includes acts that cause, and are intended to cause, “extreme humiliation which is unreasonable.” I contend that the I&E Act causes, and was intended to cause, extreme and unreasonable humiliation in making it an offence punishable by imprisonment of 1-5 years and a fine to depart Sri Lanka otherwise than from an approved port of departure and/or without valid documents.

   3. I will provide further details of my grounds of review and any other my grounds in my written submission before a hearing of my matter after I have listened to my RRT hearing CDs. I need my AAT hearing CDs and I do not have it.

3. The applicant also filed on 12 October 2017 submissions which are as follows:

   I am the Applicant. I forward this submission in support of my Court application, as requested by I provide additional grounds and particulars in addition to the grounds and the particulars stated in my Federal Circuit Court Application.

   Grounds of Judicial Review:

   1. Failure to give consideration and/or fail to make finding;

   2. Gave too much weight to the one piece of evidence.

   Particulars:

   No findings were made that any of the documents were false.

   No finding was made that I deliberately misled the AAT in respect of the incident in 2009. Otherwise there was no basis to disbelieve or dismiss the history given in Paragraph 48 of the AAT's decision.

   My admission that I falsified a document to apply for a UK visa was insufficient to support the finding that the AA T was not satisfied that I suffered harm or would be of adverse interest to the Sri Lankan authorities or that my political activities did not give me a profile.

   The AAT exercised its discretion unlawfully by giving my admission too much weight to the finding in the Paragraph 49 of the AAT's decision.

   The AAT erred in its finding in Paragraph 41 that the evidence in relation to the July 2011 incident was quoted as inconsistent and vague when the supporting document which supported my refugee claims should have been given greater weight.

   I need the AAT's hearing CDs to listen to and to provide further particulars in respect of these grounds.

   I humbly seek that you quash the Tribunal’s decision as the Tribunal failed to exercise its jurisdiction and seek a final order of a new hearing of the Tribunal to be held as I have a good merits review case with new evidence to convince the Tribunal that I deserve Australia's protection.

4. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial or procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if it was satisfied the Tribunal’s decision was unlawful or unfair the Court would set aside the decision and send it back for further review. The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed with costs.

5. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Applicant’s submissions from the bar table

1. From the bar table, the applicant submitted that the Tribunal had given too much weight to fraudulent documents in relation to his applying for a student visa in the UK. The applicant maintained that the incidents he described occurred and that the documents he provided were not forgeries. The applicant requested one more opportunity to have the matter reconsidered by the Tribunal. 

2. This Court does not have power to grant relief on compassionate grounds. This Court does not have power to reconsider the merits.  The adverse credibility findings by the Tribunal were the subject of rational and logical reasons in support of those adverse findings and were reasonably open on the material before the Tribunal.

3. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error. The issue of weight to be given to evidence is a matter for the Tribunal. In substance, the applicant’s submissions invite this Court to engage in an impermissible merits review. This Court does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error. 

Ground 1

1. In relation to ground 1 of the amended application, the s 424A letter sent to the applicant on its face complies with the statutory criteria. No other information is identified enlivening any obligation under s 424A of the Act. No transcript has been tendered in respect of the hearing to make out any alleged noncompliance with s 424AA of the Act. 

2. On the face of the material before the Court, the applicant had a real and meaningful hearing before the current Tribunal and the applicant had an opportunity to respond to and comment on the s 424A letter sent after the hearing. No jurisdictional error is made out by ground 1 of the amended application.

Ground 2

1. In relation to ground 2, the Tribunal correctly identified the relevant law in respect of complementary protection and made findings that were open to the Tribunal which were supported by logical and rational reasons. Specifically, the Tribunal found that the Immigrants and Emigrants Act was a law of general application and was not applied in a discriminatory or selective manner. Those findings were open to the Tribunal. No jurisdictional error as alleged in ground 2 of the amended application is made out. 

Ground 3

1. Ground 3 does not on its face identify anything amounting to an alleged error. 

Paragraph 1 of the submissions

1. In relation to the applicant’s written submission, in respect of paragraph 1 there is no relevant matter that the Tribunal failed to consider that was identified by the applicant. Further, there is no relevant matter identified upon which the Tribunal failed to make a relevant finding. On the face of the material before the Court, the Tribunal made dispositive findings in respect of the applicant’s claims.  The applicant’s disagreement with the adverse findings does not identify any relevant legal error. 

Paragraph 2 of the submissions

1. In relation to paragraph 2, the assertion of placing too much weight on the evidence is again a disagreement with the adverse findings by the Tribunal. The weight to be placed on evidence is a matter for the Tribunal. The adverse findings in relation to the present case were open to the Tribunal and cannot be said to lack an evidence and intelligible justification. No jurisdictional error is made out by anything in the written submissions on behalf of the applicant. The amended application fails to make out any jurisdictional error.

Section 438 certificate

1. The first respondent as a model litigant, has drawn the Court’s attention to the existence of a certificate under s 438 of the Act issued on 6 July 2015. The first respondent has tendered the documents the subject of the s.438 certificate. Those documents, the subject of certificate were patently irrelevant to the issues on the application for review. The non-disclosure of the certificate and the documents the subject of the certificate did not give rise to any denial of procedural fairness in the review process or any practical injustice in the conduct of the review. The documents are not relevant, credible and significant, and even if the failure to disclose the certificate and documents were regarded as giving rise to an error, the documents could not possibly give rise to a different outcome on the review, and for this reason relief would be refused on discretionary grounds.

2. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 November 2017